Introduction
The U.S. immigration system is currently at an impasse. While most immigrants residing in the U.S. are legally authorized to live and work here, members of the undocumented immigrant population have often spent years filling important roles in society, all the while with no means of legalizing their status. Those who wish to do so face immediate hurdles of overcoming inadmissibility and finding an employer willing to be involved in the sometimes long, often expensive process of obtaining a work permit. Beyond these difficulties, the existing work permit options themselves are limiting, making it impossible for many undocumented immigrants to qualify, leaving them with no feasible pathway to permanent residency.
While certain programs, such as Temporary Protected Status (TPS) and Deferred Action for Childhood Arrivals (DACA), offer temporary respite from deportation, as well as work and travel authorization, they are limited in scope and provide no permanent solutions. Immigration reform will need to include viable options for legalizing status and for employers to continue to hire more workers. Expanding current non-immigrant work permit categories through minimal adjustments is a way to move forward, one that recognizes the undocumented community for its valuable contributions and continued potential.
Immigrants provide critical services in some of the most important and often understaffed sectors, such as the meat and dairy industries,[1] agriculture, the food supply chain,[2] manufacturing,[3] and construction,[4] among others. To help inform policymakers and advocates, this policy report examines work permits applicable to these industries, including the H-2A and H-2B, as well as others that may have practical relevancy to immigration reform in this context, such as the USMCA and other trade agreement-based work permits, the O-1, and Canada’s humanitarian pathways for the undocumented. The examples are intended to serve as models for similar, new work permit categories designed to include more workers who would otherwise be undocumented. The proposed adjustments are based on representative profiles of the hardworking who cannot apply for legal authorization to live and work here because they do not qualify under the current system.
Improvements to H-2A and H-2B Permits
The existing H-2A (agricultural) and H-2B (non-agricultural) work permits may align most closely with the goal of creating a means through which those generally working with undocumented status could qualify for work permits, provided minimal modifications are made to the program. Some of the top industries currently using the H-2B program are also those in which the undocumented often work––including resort and hospitality, retail, landscaping, food service and processing, and construction.[5] While the H-2A visa is not subject to numerical limitations, the H-2B visa is subject to an annual cap of 66,000.[6] As shown in Figure 1, the number of H-2As issued has steadily increased over the years.[7] Nevertheless, the H-2s (along with the O-1s and USMCA work permits also discussed herein) make up a very small percentage of all visa categories issued.[8] This may be due to some of the program’s limiting factors.
Figure 1 — H-2A and H-2B Visas Issued, FY1992-FY 2021
Currently, a petitioning employer must prove that there is a lack of “able, willing, qualified, and available” workers.[9] Given that some of the roles the undocumented commonly fill do not require any educational or experience qualifications, it may be possible to prove that no U.S. workers are “willing” and “available”; it can be more difficult to prove that none are “able” or “qualified.” If this requirement was modified accordingly, it could serve as a starting point for employers who knowingly employ the undocumented and are ready to legalize their staff. It may also encourage those who wish to legally hire workers for jobs typically held by the undocumented but who have been unable to do so due to labor market limitations.
Removing specific components of the H-2 requirement to designate certain foreign workers as “temporary” would also significantly improve the chance of including more of the undocumented or those at risk of becoming undocumented. For example, H-2B employers must prove that the need to hire a foreign worker is temporary because it is a one-time occurrence, seasonal, at peak load, or intermittent.[10] It is true that H-2 permits can offer a strong beginning for those who wish to be hired in the U.S. for the first time and who would have otherwise been forced to work illegally because of a lack of suitable work permits. But if the requirement for temporary status is not removed, its restrictive nature may deter those looking to start long-term employment in the U.S.
Raising visa caps is another vital step toward addressing workforce needs. The U.S. could benefit from increasing the limited number of H-2B work permits issued annually.[11] Similarly, the H-2A may not be meeting the widespread need for agricultural workers, and has been found to be underused by employers.[12] The Secretary of Homeland Security can exercise authority to raise the H-2B cap. In 2022, the Department of Homeland Security and the Department of Labor for the first time made additional H-2B visas available in the first half of the fiscal year.[13]
Perhaps the most significant hurdle of the H-2A and H-2B visas is employer reluctance to apply for them. The process can be daunting, even for employers with good intentions. The application process for certification by the Department of Labor requires the employer to disclose company information, obtain a prevailing wage determination, file a job order with the state workforce agency, and submit the petition to the Labor Department’s Chicago National Processing Center. The employer must also complete a specific recruitment process that complies with program requirements and follow additional steps.[14] Proposed reforms to facilitate this process have yet to succeed.[15] Until such changes are made, employers will hesitate to engage in the cumbersome H-2 process. Modifications to other work permit categories that are less involved for employers may be the most practical, immediate way forward, as discussed below.
Expansion of the USMCA and Other Free Trade Agreements
The USMCA (the successor to NAFTA) includes an appendix that sets out the rules for the entry of workers between the U.S., Mexico, and Canada.[16] The USMCA work permit, commonly known as the “TN,” enables qualifying professionals to work in the U.S. in one of the designated professional categories for a temporary, renewable period of up to three years. The categories include traditional roles such as accountant, lawyer, architect, and engineer, among others. With a category for computer systems analysts and another for graphic designers, but none for newer technology roles such as software developers and IT managers, the TN is eventually going to have to be updated and it is surprising it has not happened yet.
If the USMCA is ever amended to expand the professional work permit categories, it would be prudent to include another section based on some of the roles commonly held by the undocumented, such as technical options (electrician, computer support specialist, and medical assistive personnel) or non-professional options (restaurant manager or server, construction worker, and plumber).[17] The existing TN category of scientific technician or technologist is one of the few that currently does not require a degree, but during adjudication, it is highly scrutinized for this very reason and the experience criteria can be difficult to meet.[18] Expanding this category or creating a similar one for other types of technicians or technologists would be useful for many.
Opening this type of work permit option to include foreign nationals beyond those from Mexico and Canada is another possible way to include more workers. Canada offers several work permit categories for nationals of countries that have free trade agreements with Canada, including Colombia, Chile, Korea, Peru, and others.[19] The U.S. could follow this example.
Interestingly, the scope of some Canadian work permit categories is much broader than that of the USMCA. The Canada-Peru Free Trade Agreement work permit, for example, includes professionals using a negative list, meaning all who meet the general definition of a professional can qualify, so long as they are not on the list of professions excluded.[20] The categories of professions are much wider in scope as well; any role that falls under Canada’s National Occupation Classification A or 0 (i.e., professional) can constitute a professional role under this free trade agreement[21]—unlike the USMCA, which limits workers to qualifying for and working under one of the specific professions listed. The Canada-Peru Free Trade Agreement is more limited for technicians applying for a work permit; their occupations must be on a specified list of technician types to qualify. However, in many instances, the list includes precisely the roles that are missing from the USMCA’s TN option, such as plumbers, electricians, and others.[22]
Furthermore, the U.S. already has the existing E-1 (treaty trader[23]), E-2 (investor), and E-3 (Australian in Specialty Occupation) programs open to qualifying citizens of countries that maintain treaties of commerce and navigation with the U.S.[24] Selecting nationalities already permitted in the United States’ E-visa program and using the work permit models of Canada’s free trade agreements could be a starting point for new types of work permits similar to the TN, but inclusive of more countries and professions. This option may be attractive for legislators because it restricts immigration while also offering avenues for more workers; the option may be limited to certain free trade agreements, but expansive in that citizens of several countries in new types of roles are included.
Work Permits Based on Desirable Criteria
The Extraordinary Ability (or O-1) work permit is one of the most interesting in the current U.S. immigration system. It specifically allows individuals in a broad scope of fields (sciences, arts, education, business, athletics, motion pictures or television) to obtain a work permit if they meet at least three criteria from a specified list.[25] While this work permit is extremely difficult to obtain and exclusive,[26] its concept is interesting because it allows for a certain level of subjectivity in adjudication and, in some ways, creativity by the individual presenting a case. If described well and supported by appropriate evidence, some accomplishments that do not fall under the more unequivocal O-1 criteria (such as the authorship or receipt of an international award criteria), may qualify under the more flexible criterion (namely, original contributions of major significance to the applicant's field).
A similar work permit category for targeted industries could include a number of desirable criteria, at least three of which would need to be met by the worker to qualify. In this case, the factors would be focused on compelling and compassionate criteria rather than extraordinary ability. The factors could include a certain number of years of work experience; a proven record of aiding others; volunteer experience in the target industry; mentorship of other employees; or recognition for outstanding contributions to a company or organization. Such an expansion of the O-1 concept would recognize that the extraordinary can stand out in many different ways.
Humanitarian and Compassionate Grounds
Though this discussion has been focused on non-immigrant work permits, it is important to contemplate what will become of those who still do not qualify but deserve to remain in the U.S. for other reasons. The U.S. has existing programs that provide temporary protected status, usually based on country-specific circumstances.[27] Humanitarian parole is also available to those who are inadmissible or would otherwise be ineligible to enter the U.S. if an officer determines that the case merits favorable discretion for urgent humanitarian or significant public benefit reasons, but it is temporary in nature, and usually relates to admission rather than extending status in the U.S.[28]
Canada’s immigration laws include humanitarian and compassionate considerations for permanent residency that would be a welcome addition to the limited options available in the United States. An individual currently living in Canada may apply for permanent residence in Canada on humanitarian and compassionate grounds if ineligible for any of the other existing permanent residence classes. Factors considered include establishment in Canada; inability to leave; ties to Canada; best interest of children; health; family violence; consequences of separation from a relative; factors in country of origin (non-protection related).[29] A similar program in the U.S. would give the undocumented a means of applying for permanent residency status without being required to apply for a waiver, leave the U.S., and wait abroad for an extended period of time as the case winds through the system.[30] It would also benefit those who are valuable members of society due to lengthy work histories, family ties and other forms of establishment in the country, but cannot qualify for permanent residency under any of the currently available categories.
Canada is also developing a new, as yet undisclosed path to permanent residency for the country’s undocumented workers. The change is motivated not only by the challenges faced by vulnerable undocumented immigrants, but also by the economic boost they stand to provide once legalized.[31] An initiative built on similar values is one for the U.S. to consider.
A Welcome Change
Workers of all kinds who strive to make a life in the U.S. are arguably model contributors ready to sacrifice and work to be in the U.S.; they have made the U.S. their goal. Such individuals will help to advance U.S. innovation and prosperity. Many more professional work permit and permanent residency categories could be created or expanded to include immigrant profiles not covered by the existing options. As for the undocumented residing in the U.S., there is still the need to create a more efficient waiver application process, particularly for those with no criminal record who are inadmissible only due to unlawful entry or prior overstay. The Biden administration’s recent announcement of the DACA final rule, which codifies the existing policies to preserve and fortify DACA, is a small but hopeful start. Protecting DACA in this way has never been done before, and a new section of the code with the ability to transform lives proves that unprecedented change just might be possible.[32] Any next step in this direction will be a welcome one.
The U.S. immigration system may not be completely broken, but it has a large, overlooked, and often invisible crack running through its core pillars. So many of the undocumented want to work but have no realistic means of doing so lawfully. They are valuable, and they are wanted—they are needed by the employers who depend on them. Rather than holding onto the existing, limited options, a more inclusive system will represent a new level of recognition that will fortify not only workers but the country’s future.
References
[1] Rural labor shortages have caused many dairy farmers to rely on immigrant, often undocumented, labor. There are also high percentages of foreign workers in the meatpacking industry. See “The Essential Role of Immigrants in America’s Meat and Dairy Industry,” American Immigration Council, June 2022, https://www.americanimmigrationcouncil.org/sites/default/files/research/tending_to_americas_food_supply_meat_dairy_industries.pdf. See also “The Essential Role of Immigrants in the U.S. Food Supply Chain,” The Migration Policy Institute, April 2020, https://www.migrationpolicy.org/content/essential-role-immigrants-us-food-supply-chain.
[2] Ibid. In 2020, immigrants made up 69% of California’s agricultural worker population. High percentages of immigrant workers are also found in the grocery, retail, transportation, and animal production sectors of the food production industry.
[3] In 2017, it was found that 45% of all workers in U.S. households were from overseas, and 22% of those workers were undocumented. Textile, apparel, and leather manufacturing had the second-highest proportion of immigrants. See Niall McCarthy, “The U.S. Industries with the Most Immigrant Workers,” Forbes, March 17, 2017, https://www.forbes.com/sites/niallmccarthy/2017/03/17/the-u-s-industries-with-the-most-immigrant-workers-infographic/?sh=961420a5ffb8.
[4] In 2021, it was found that foreign-born workers were more likely than native-born workers to be employed in service occupations such as construction, maintenance, natural resources, and others. See “Foreign-Born Workers: Labor Characteristics—2021,” Bureau of Labor Statistics, U.S. Department of Labor, May 18, 2022, https://www.bls.gov/news.release/pdf/forbrn.pdf.
[5] For an overview of H-2A and H-2B nonimmigrant worker classifications, see U.S. Citizenship and Immigration Services, 2010 National Congressional Conference presentation, https://www.uscis.gov/sites/default/files/document/presentations/H-2A%20and%20H-2B%20Nonimmigrant%20Worker%20Classifications.pdf. In FY2021, USCIS received 9,200 H-2B petitions and 20,100 H-2A petitions. In comparison, 418,300 H-1B petitions were received. See U.S. Citizenship and Immigration Services, FY2021 Annual Statistics, https://www.uscis.gov/sites/default/files/document/reports/2021%20USCIS%20Statistical%20Annual%20Report.pdf.
[6] Andorra Bruno, “H2A and H Po2B Temporary Worker Visas: Policy and Related Issues,” Congressional Research Service, updated June 9, 2020, https://sgp.fas.org/crs/homesec/R44849.pdf.
[7] Congressional Research Service, “H-2A and H-2B Temporary Worker Visas: Policy and Related Issues,” updated June 9, 2020. https://crsreports.congress.gov/product/pdf/R/R44849; U.S. Department of State, “Nonimmigrant Visas Issued by Classification (including Border Crossing Cards) Fiscal Years 2017-2021,” https://travel.state.gov/content/dam/visas/Statistics/AnnualReports/FY2021AnnualReport/FY21_%20TableXVB.pdf.
[8] U.S. Department of State, Nonimmigrant Visas.
[9] USCIS, “H-2B Temporary Non-Agricultural Workers,” last updated May 31, 2022, https://www.uscis.gov/working-in-the-united-states/temporary-workers/h-2b-temporary-non-agricultural-workers.
[10] The H-2A is still limiting in this sense, requiring the work to be seasonal and temporary (not lasting longer than one year). See H-2A Temporary Agricultural Workers, USCIS website, last updated November 9, 2021, https://www.uscis.gov/working-in-the-united-states/temporary-workers/h-2a-temporary-agricultural-workers; https://www.uscis.gov/working-in-the-united-states/temporary-workers/h-2a-temporary-agricultural-workers.
[11] USCIS, “Cap Count for H-2B Nonimmigrants,” last updated August 29, 2022, https://www.uscis.gov/working-in-the-united-states/temporary-workers/h-2b-non-agricultural-workers/cap-count-for-h-2b-nonimmigrants.
[12] Andrew Moriarty, “Immigrant Farmworkers and America's Food Production: 5 Things to Know,” March 18, 2022,https://www.fwd.us/news/immigrant-farmworkers-and-americas-food-production-5-things-to-know/.
[13] Exercise of Time-Limited Authority To Increase the Numerical Limitation for Second Half of FY 2022 for the H-2B Temporary Nonagricultural Worker Program and Portability Flexibility for H-2B Workers Seeking To Change Employers, FR Doc. 2022-10631 Published 5-18-22, https://www.federalregister.gov/documents/2022/05/18/2022-10631/exercise-of-time-limited-authority-to-increase-the-numerical-limitation-for-second-half-of-fy-2022.
[14] U.S. Department of Labor, “H-2B Temporary Non-agricultural Program H-2B Online Filing via FLAG System Program Overview,” https://www.dol.gov/agencies/eta/foreign-labor/programs/h-2b. Specifically see 29 CFR § 503.16 - Assurances and obligations of H-2B employers
[15] Danilo Zak, “Bill Summary: Farm Workforce Modernization Act,” National Immigration Forum, November 19, 2019, https://immigrationforum.org/article/bill-summary-farm-workforce-modernization-act/.
[16] Appendix 2 of the United States of America, the United Mexican States, and Canada (“USMCA”), the U.S. Department of State Foreign Affairs Manual Volume 9 (9 FAM 402.17), 22 CFR 41.59, and 8 CFR 214.6, sets out the rules for entry of foreign workers.
[17] There are existing categories for hotel managers, landscape architects, forester, engineer, nurse, and other professions, all requiring a bachelor’s level degree or post-secondary diploma combined with experience. Adding similar categories for those without the degrees who report to professionals or managers in these fields therefore could be relevant and feasible.
[18] Appendix 2 specifies: “possession of (a) theoretical knowledge of any of the following disciplines: agricultural sciences, astronomy, biology, chemistry, engineering, forestry, geology, geophysics, meteorology, or physics; and (b) the ability to solve practical problems in any of those disciplines, or the ability to apply principles of any of those disciplines to basic or applied research. A business person in this category must be seeking temporary entry for work in direct support of professionals in agricultural sciences, astronomy, biology, chemistry, engineering, forestry, geology, geophysics, meteorology or physics.” The management consultant professional category also does not require any education, but the applicant must have the alternative of five years of proven qualifying experience, and the category is reserved for those who have provided advice and recommendations to management. The computer systems analyst role allows for a post-secondary diploma and three years of experience.
[19] There are also work permits for EU citizens, UK citizens and others under Canada’s various agreements. See Government of Canada, Immigration, Refugees and Citizenship, Canada, “International Mobility Program: International Free Trade Agreements,” last modified May 20, 2021, https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/temporary-residents/foreign-workers/international-free-trade-agreements.html.
[20] Immigration, Refugees and Citizenship, Canada, “International Mobility Program: International Free Trade Agreements (FTAs)-Canada, https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/temporary-residents/foreign-workers/international-free-trade-agreements/internationals-ftas-canada-peru.html.
[21] The National Occupation Classification (“NOC”) codes are part of a system similar to the U.S. Standard Occupational Classification “SOC” codes under the US Department of Labor’s Federal standard to classify workers into occupations.
[22] “International Mobility Program: International Free Trade Agreements (FTAs)-Canada.”
[23] For E-1 purposes, a “treaty trader” is an individual who engages in substantial, principal trade between the U.S. and their qualifying country of citizenship. (Generally qualifying countries are those that maintain a treaty of commerce and navigation with the U.S., certain international agreements or those deemed qualifying by legislation). For more information, see USCIS, “E-1 Treaty Traders” last updated May 4,, 2022, https://www.uscis.gov/working-in-the-united-states/temporary-workers/e-1-treaty-traders.
[24]U.S Department of State–Bureau of Consular Affairs, “Treaty Trader & Investor Visas and Visas for Australians in Specialty Occupations,” https://travel.state.gov/content/travel/en/us-visas/employment/treaty-trader-investor-visa-e.html. For a full list see https://travel.state.gov/content/travel/en/us-visas/visa-information-resources/fees/treaty.html.
[25] The list includes criteria such as published material about the applicant; receipt of a national or international award; judge of the work of others; authorship and other accomplishments. Specifically see “Evidentiary criteria for an O-1 alien of extraordinary ability in the fields of science, education, business, or athletics,” at 8 CFR 214.2(o)(3)(iii)(B).
[26] Approximately 13,000 were issued in 2021 compared to the nearly 815,000 B1/B2 visitor visas. See U.S Department of State–Bureau of Consular Affairs, “Table XV(A) Classes of Nonimmigrants Issued Visas (Including Border Crossing Cards) Fiscal Years 2017-2021,” https://travel.state.gov/content/dam/visas/Statistics/AnnualReports/FY2021AnnualReport/FY21_TableXVA.pdf..
[27] TPS is currently available for certain qualifying citizens from countries such as Ukraine, El Salvador, Somalia, and others. See USCIS, “U.S. Citizenship and Immigration Services, Temporary Protected Status,” last updated August 1, 2022, https://www.uscis.gov/humanitarian/temporary-protected-status.
[28] USCIS, “U.S. Citizenship and Immigration Services, Humanitarian or Significant Public Benefit Parole for Individuals Outside the United States,” last updated July 25, 2022, https://www.uscis.gov/humanitarian/humanitarianpublicbenefitparoleindividualsoutsideUS.
[29] For example, under the “family violence” category, a spouse of a Canadian citizen who feels compelled to remain in the country because of an abusive situation but eventually leaves the relationship, may not qualify for permanent residency under the approved family class, but could qualify to apply for permanent residency on humanitarian and compassionate grounds. Government of Canada, “Immigration, Refugees and Citizenship, Canada, Humanitarian and Compassionate Grounds,” https://www.canada.ca/en/immigration-refugees-citizenship/services/refugees/claim-protection-inside-canada/after-apply-next-steps/refusal-options/humanitarian-compassionate-grounds.html.
[30] Currently, lawful permanent resident applicants who are inadmissible to the U.S. require a waiver. This usually involves proving that the applicant’s removal would cause extreme hardship for a U.S. citizen. Even if an applicant is within the U.S. and the waiver is adjudicated by United States Citizenship and Immigration Service (rather than the consulate abroad), the applicant must still leave the country and attend an immigrant visa interview in order for the waiver to take effect. This can involve a long wait for visa issuance by the consulate before being permitted to return to the U.S. For more information, see USCIS, “I-601, Application for Waiver of Grounds of Inadmissibility,” last updated October 20, 2022, https://www.uscis.gov/i-601 and USCIS, “Inadmissibility and Waivers,” PDF available on USCIS website at: https://www.uscis.gov/sites/default/files/document/foia/Inadmissibillity_and_Waivers.pdf.
[31] Sara Mojtehedzadeh and Nicholas Keung, “Canada Developing Path to Permanent Residency for Undocumented Workers,” September 2, 2022, https://www.thestar.com/news/canada/2022/09/02/canada-developing-path-to-permanent-residency-for-undocumented-workers.html. See also “Canada Soon to Offer Permanent Residency to Undocumented Immigrants,” The Business Immigrant, September 5, 2022, https://thebusinessimmigrant.com/canada-to-offer-permanent-residency-to-undocumented-immigrants/. The new path may build on a prior, smaller-scale public policy to allow undocumented construction workers in Toronto to legalize their status. Some of its criteria could be interesting to analyze for a U.S. work permit or permanent residency model based on desirable factors. See Government of Canada, “Immigration, Refugees and Citizenship, Canada, The Temporary Public Policy for Out-of-Status Construction Workers in the Greater Toronto Area,” archived content, https://www.canada.ca/en/immigration-refugees-citizenship/corporate/mandate/policies-operational-instructions-agreements/permanent-residence-construction-workers-gta.html.
[32] The rule will take effect October 31, 2022. The new DACA regulations will be similar to existing policies, with limited amendments, and will be found at 8 CFR§ 236.21-236.25. See National Immigration Law Center, and Immigration Resource Legal Center, “Deferred Action for Childhood Arrivals (DACA) Final Rule Summary,” Practice Advisory, September 2022, https://www.ilrc.org/sites/default/files/resources/daca_final_rule_summary_-_september_2022.pdf. See also National Public Radio, “Biden administration moves to make DACA harder to challenge in court,” August 26, 2022, https://www.npr.org/2022/08/26/1119568458/biden-administration-moves-to-make-daca-harder-to-challenge-in-court. The advancement still faces review by the courts. In October the Fifth Circuit Court of Appeals affirmed the lower court’s prior ruling against DACA but remanded the case for consideration of the new Biden administration ruling. See Reuters, “U.S. appeals court sends DACA case back to lower court to consider new rule,” October 6, 2022, https://www.reuters.com/legal/us-appeals-court-sends-daca-case-back-lower-court-consider-new-rules-2022-10-05/.
This material may be quoted or reproduced without prior permission, provided appropriate credit is given to the author and Rice University’s Baker Institute for Public Policy. The views expressed herein are those of the individual author(s), and do not necessarily represent the views of Rice University’s Baker Institute for Public Policy.
