THE ABC'S OF IMMIGRATION - OPTIONS FOR ESSENTIAL WORKERS

In light of the indictments announced this week charging Tyson Foods with immigrant smuggling, we thought we would look at the options available to employ what are called “essential workers,” those working in semi-skilled and unskilled positions, often in fields where it is difficult, if not impossible, to find US workers.  As vital as these positions are to the US, there is no category of nonimmigrant visas that adequately provides for them, and the immigrant category available has many of its own limitations.

The H-2A visa provides for temporary admission of agricultural workers.  Despite the fact that agriculture is a highly time sensitive industry, the processing times for obtaining H-2A visas are quite lengthy.  The employer must first obtain permission to hire foreign workers from the Department of Labor, which requires numerous attestations regarding the inability to find US workers and how the foreign worker will be paid and housed while in the US.  The employer must also show that the need for employees is temporary or seasonal, which alone is often enough to render the category useless for many employers.  While some agricultural areas are clearly seasonal, such as crop harvesting, others are not.  For example, Tyson and other meat providers generally have the same workload year-round, rendering the category useless.

The same problem of showing that the need for employees is temporary also plagues the H-2B nonimmigrant category.  This category covers both skilled and unskilled workers who will be employed in a temporary or seasonal position that is not in agriculture.  H-2B petitions require a labor certification from the Department of Labor, which will also make a determination on whether the need for the worker is temporary.

Another possible category for essential workers is the H-3 trainee category.  However, it too has significant restrictions that limit its usefulness.  First, the training must not be available in the foreign worker’s home country.  Second, the foreign worker cannot be productively employed unless such employment is necessary to the training, and the position cannot be one that would ordinarily be filled by a US worker.  Moreover, the employer must present a detailed training program.  These restrictions make the H-3 category less than ideal for employers with essential worker positions to fill.

Employers could attempt to obtain a J-1 visa, but as with the other nonimmigrant categories, it has significant limitations.  J-1 visas can be obtained for training purposes, but the position cannot be unskilled.  This greatly reduces its usefulness in agricultural areas.  Another possibility using J-1 visas is the summer work program.  Under this, foreign college students can work in the US during the summer with few restrictions.

Things are slightly easier for employers seeking an immigrant visa for an essential worker.  The third employment-based immigrant visa preference category provides for the immigration of skilled workers who will be working in a position requiring at least two years of training, and for unskilled workers.  As with the nonimmigrant possibilities, however, there are issues with this category as well.  It requires a labor certification approved by the Department of Labor, a time consuming process.  There are only 40,000 EB-3 visas available each year, and of these, only 10,000 may be used for unskilled workers.  While all employment-based immigrant categories are now current, this category tends to be the one most subject to backlogs.  Also, there is no way for workers to remain legal while the application is pending, which means that employers who hire these workers while waiting for an I-140 approval could very well face a number of problems when switching the employee into green card status (not to mention facing liability for employing unauthorized workers).

As this overview shows, there are few options for employers seeking to fill essential worker positions, even though the difficulty of recruiting US workers is well documented.  Many argue that employers could overcome the reluctance of US workers to take these jobs by offering higher wages.  However, while this might have the effect of making the job more acceptable to a US worker, it would significantly increase the end cost of the product, whether food, housing, hotel rooms, and so on.  Immigrant smuggling is certainly not the answer, but the problem will likely continue until Congress addresses the US need for essential workers.