Posted on October 2, 2007

A Guest Worker Program Is Shrinking Despite High Demand in Texas

Karen Robinson-Jacobs and Brendan M. Case, Dallas Morning News, October 1, 2007


As the controversy rages over illegal immigrants holding U.S. jobs, thousands of employers are quietly turning to a legal source of foreign workers once used almost exclusively by builders and landscapers.

Now, however, the broader debate over revamping immigration policy threatens to shrink this program at exactly the time it is most in demand.

An exemption to federal law that has allowed the number of workers in the H2B guest worker program to swell is expiring today. That snaps the national cap back to the statutory limit of 66,000 workers each year, compared with the nearly 72,000 who came here in 2006.

Texas, the single largest user of H2B labor in the United States, will be especially affected.


Under the H2B program, foreign nonagricultural workers like Ms. Montero each year are granted visas allowing them to temporarily hold a variety of U.S. jobs, from auto body mechanic to dining room attendant.

The U.S. government began handing out the visas in 1990 in a modest bid to help U.S. employers with seasonal, peak load, intermittent or one-time needs.

H2B is similar to programs that bring in highly skilled foreign workers (H1B) and agricultural workers (H2A).

Demand for these workers is booming. The number of H2B workers sought by U.S. employers jumped from about 100,000 in fiscal year 2000 to nearly 250,000 in 2006.


An estimated 515,000 illegal immigrants arrived in the United States each year between 2000 and 2006, according to a U.S. Department of Homeland Security study released in August. Texas alone saw an average annual increase of 91,667 in its unauthorized immigrant population during that period—more than any other state, the study said.

Only about 2,400 H2B visas were issued to workers in 1995. But with the allure of a government sanction, the H2B program has grown exponentially.

At the limit

In fiscal year 2004, the 66,000 annual visa allotment was tapped out for the first time.

That left employers scrambling to find legal workers to shuck shellfish on the Texas coast or fix tacos in San Marcos.

The lid on the number of H2B visas was eased in May 2005 via the Save Our Small and Seasonal Businesses Act, authored by Sen. Barbara A. Mikulski, D-Md. The measure included, among other things, a provision for seasonal workers who were returning to the U.S. after the mandated two-month break at home. Under the act, such “returnees” weren’t counted against the cap of 66,000. Hence the growth to 72,000 workers last fiscal year.

No hearing is scheduled on a new bill that would continue the expanded headcount until 2012. Attempts to address the issue through amendments to other bills have failed.

Meanwhile, a threatened employer crackdown by the U.S. Bureau of Immigration and Customs Enforcement has some bosses running scared. Many are looking to replace workers who may not have authentic paperwork with those like Ms. Montero, whose arrival was blessed by at least four government agencies.


H2B visas are issued from a pool of applications approved, or “certified,” by the U.S. Department of Labor. For the fiscal year that ended Sept. 30, 2006, DOL certified requests from Texas employers for more than 26,000 jobs, more than any other state.

Total requests from Texas employers—certified and denied—jumped from 476 in the 2000 fiscal year to 1,291 in 2006, according to an analysis of DOL data by The Dallas Morning News. (One request often asks for numerous workers.)

Employers’ perspective


Among the fastest-growing segments seeking to tap into the program is food service. Nationwide, requests from food-related employers nearly doubled between 2000 and 2006—from 968 to 1,853.

Mike Shutley, director of legislative affairs for the National Restaurant Association, said that the industry’s traditional labor pool—teens and people in their early 20s—is not expected to grow much in the U.S. over the next 10 years.

“This 16- to 24-year-old demographic is half our workforce,” said Mr. Shutley. “The only other legal way to get seasonal workers is to turn to the H2B visa.”


The critics

Critics argue that the very presence of Mr. Van Der Walt and the other H2Bs undermine the U.S. economy by keeping wages artificially low for U.S. workers and stifling the drive to find less labor-intensive solutions using technology.

“The idea that there are not enough people [here] for businesses to hire is absurd,” said Mark Krikorian, executive director of the Washington, D.C.-based Center for Immigration Studies, a research group that supports tighter controls on immigration.

“The basic premise—that Americans won’t do this work—is economic gibberish,” he said. “What they mean is: Americans won’t work for what they’re willing to pay.”

Mary Bauer of the Southern Poverty Law Center, a nonprofit agency based in Montgomery, Ala., compares the guest worker program to modern-day slavery in a report she wrote in March.

Open to abuses


There were threats earlier this year from Immigration and Customs Enforcement to fine employers up to $10,000 for each worker whose numbers didn’t match data on file with the Social Security Administration.

That was put on hold in August by U.S. District Judge Maxine Chesney in San Francisco. U.S. District Judge Charles Breyer, also in San Francisco, is expected to review the case Monday.


Several employers agreed the program has shortcomings. But, they said, in the absence of a viable alternative, a cumbersome fix beats a costly fine.