U.S. Temporary Foreign Worker Visa Programs

Introduction

Foreign workers have been an essential but contentious feature of the U.S. economic landscape for generations. Since the United States launched its first migrant labor program during World War I, Washington has struggled to balance the shifting needs of industry with the concerns of the domestic labor force. Meanwhile, the temporary worker debate has been complicated by increasing levels of undocumented immigration and a growing political divide.

President Donald Trump promised to reform temporary foreign worker programs, also known as guest worker programs, in line with his “Buy American and Hire American” agenda; although his proposals to overhaul the country’s immigration system stalled in Congress, his administration managed to halt most foreign worker visa programs during the COVID-19 pandemic. President Joe Biden has sought to reverse his predecessor’s approach by expanding the legal opportunities for temporary migration, but reform efforts have also faced resistance from some policymakers.

What are the largest foreign worker visa programs?

The number of visas issued as part of U.S. temporary foreign worker programs, classified as nonimmigrant visas, has risen sharply after the first years of the pandemic slowed the movement of international migrants: more than 984,000 such visas were granted in 2022 [PDF], up from some 846,000 in 2019. The H1B, H2A, H2B, and H4 visas, the largest of these programs, have been the subject of some of the most heated debate.

In 2022, the United States issued more than 766,000 visas for those programs, far more than the 616,000 issued in 2019. However, the total number of workers participating in these programs at any one time is unknown [PDF] because the various federal data systems that process visas are not linked. This total number includes H1B workers who have received visa extensions while awaiting permanent residency status, a process that can take more than a decade. There are almost a dozen other temporary foreign worker visas that fall under the L, O, P, and Q categories. They cover a wide range of additional employment sectors, including for those who have extraordinary abilities in the arts, sciences, athletics, business, or education.

How did the temporary worker programs start?

The earliest U.S. temporary worker programs, such as the Bracero Program, were established amid severe labor shortages during World War I and World War II to draw in hundreds of thousands of agricultural laborers, primarily from Mexico. It wasn’t until 1952, however, that lawmakers attempted to regulate these programs, consolidating them in the comprehensive Immigration and Nationality Act (INA) passed that year. The INA introduced both the H2 visa and the H1 visa, the precursor to the H1B that would be formally established in 1990; a visa category for spouses and children was created in 1970 as an amendment to the INA.

How have they changed in recent administrations?

Changes to major aspects of the programs, such as numerical caps and wage requirements, require congressional approval, but presidents have the authority to unilaterally change some regulations and can determine how federal officials implement them. “A lot of the latitude an administration has is in how carefully the requirements are enforced,” says Hiroshi Motomura, a law professor at the University of California, Los Angeles.

In 1998, President Bill Clinton signed legislation that significantly increased the H1B cap for 1999–2001 in response to pressure from technology companies who requested more skilled workers to meet growing industry demand. The bill also placed additional requirements, including increased fees, on so-called H1B-dependent employers, or employers with high proportions of H1B workers, and it penalized those who falsified information. Two years later, Clinton signed the American Competitiveness in the Twenty-First Century Act of 2000, which further increased employers’ fees and temporarily raised [PDF] the annual H1B cap from 115,000 to 195,000 for fiscal years 2001–03.

In 2004, President George W. Bush reduced the H1B program’s cap to today’s limit of sixty-five thousand. And in 2008, he eased oversight of the H2A program’s labor certification process, which had formerly been supervised by federal and state officials, by allowing employers to merely attest to complying with the program’s requirements. Additionally, his administration lowered the wage requirements for H2A workers.

President Barack Obama reversed many Bush-era policies with several executive orders aimed at strengthening the organized labor force. In 2010, his administration reverted to a more supervised process after claiming that the attestation-based process implemented under Bush resulted in widespread noncompliance, and in 2015, it began allowing some H4-visa holders to work to ease economic burdens on H1B families. (A 2020 Government Accountability Office report on the H2B program found that the change did not lead to fewer violations.) Yet, some critics argued that Obama’s policies adversely affected wages and working conditions for U.S. workers.

What is the process for getting a temporary work visa?

Several executive branch agencies are involved in reviewing and approving petitions for temporary work visas, including the Department of Homeland Security (DHS), the Department of Labor (DOL), and the Department of State. Employers must obtain certification from the DOL and are required to show that there are no qualified or available U.S. workers for the open positions (oversight of this process varies by program). They then file a nonimmigrant worker petition with U.S. Citizenship and Immigration Services, a DHS agency, on behalf of prospective workers.

Once approved, workers apply to their local U.S. embassy or consulate for a visa. Consular officers interview applicants to determine whether they qualify for a visa; applicants for most of these visa categories typically must provide evidence that they plan to return to their country of origin after the visa expires. In recent years, H1B visas have been distributed based on a lottery as the number of applications has overwhelmingly exceeded the numerical cap; an H2B lottery was held for the first time in 2018. Still, DHS officials have the ability to deny visa holders at ports of entry on grounds related to health, crime, or security.

What is the debate over these programs?

H1B. Criticisms of the program are many and varied. To some critics, the H1B program is too large, too small, too inflexible, poorly monitored, or overly regulated. Proponents say the program is necessary to make up for a shortage of qualified domestic applicants, particularly those with advanced technical degrees. They, along with some immigration experts, say the government should expand and streamline the program, doing away with the current lottery system. 

On the other hand, U.S. labor groups allege that some businesses take advantage of the H1B program because they can get away with paying foreign workers less and offering fewer labor protections. All companies must attest they will comply with rules regarding wages and working conditions, but only H1B-dependent employers under certain circumstances must attest to having first sought out qualified American workers. Still, others say that the H1B program leads to competition between domestic and foreign workers, which it was designed to prevent.

H2A and H2B. Some experts claim the red tape involved in temporary worker immigration leads to an inefficient system that incentivizes hiring undocumented immigrants, many of whom are just as willing to avoid the required fees and paperwork. The agricultural worker program has no numerical cap, but it provided visas to almost three hundred thousand workers in 2022, over four times more than it did a decade prior. The U.S. Department of Agriculture estimates that in recent years, around 40 percent of farmworkers were undocumented, binding this issue to the broader debate over immigration enforcement. “When it’s more difficult to come into the United States to work legally, all things being equal, more people enter to work illegally or overstay their visas,” says Alex Nowrasteh of the libertarian-leaning Cato Institute. Despite the problems plaguing these programs, cutting them entirely would increase undocumented immigration, he says. Experts argue that, in most cases, temporary workers who spend months or years working in the United States will never get the chance to become green card–holders or naturalized citizens.

Some lawmakers and advocacy groups say the government agencies managing these programs do not go far enough to ensure that foreign workers are not displacing domestic workers. Others stress they fail to protect foreign workers from exploitation. Current rules and fee requirements make it difficult for temporary workers to change employers, which, advocates say, prevents them from negotiating for fair wages and improved working conditions. One of the biggest problems the system has is that the legislation behind these programs is inflexible, says Audrey Singer, an immigration expert at the Congressional Research Service. “By the time we develop and pass these bills into law, they become outdated,” Singer says.

What changes did the Trump administration make?

President Trump pledged to reduce both legal and illegal immigration and implement a “merit-based” immigration system, though he failed to gain the support in Congress necessary to make such policy changes. In 2017, he issued an executive order directing federal agencies to evaluate immigration policies in order to protect U.S. workers and crack down on fraud. He requested that agencies suggest reforms to the H1B program to ensure that visas were awarded to the most-skilled or highest-paid applicants. The administration temporarily suspended fast-track processing for H1Bs on two occasions, and the number of denials of H1B applications more than doubled in 2018 from the year before. In 2019, however, denials dropped sharply, bringing the approval rating up to 98 percent. 

Despite Trump’s anti-immigrant rhetoric, between 2016 and 2019, at least fifteen thousand additional H2B visas were granted on top of the annual cap to meet the high demand for seasonal workers that resulted as unemployment dropped to its lowest level in decades. In May 2019, Trump unveiled a plan to overhaul the country’s immigration system, aiming to shift from visa lotteries and family reunification to a points-based system that would consider factors such as age and English proficiency. But the proposal failed to gain any traction in Congress.

What other reforms have been proposed?

Recent H1B bills have included proposals to permanently raise the numerical cap, impose additional requirements on companies planning to pay H1B workers less than $100,000, and reduce fraud and abuse. The latest bipartisan bill, reintroduced in 2023, aims to prioritize U.S.-educated H1B applicants and close loopholes that have allowed the replacement of American workers with H1B and other visa holders. (Previous attempts to pass the bill stalled in Congress.)

Meanwhile, proposed reforms to the H2 programs have focused on streamlining their administration to shorten the labor certification and application process from up to two months to just days. Some have proposed overhauling or entirely replacing the programs; Senator Dianne Feinstein (D-CA) has previously pushed for an agricultural worker program focused not only on admitting new workers, but also on identifying undocumented workers in the country and granting them legal status. A Republican-sponsored bill introduced in 2017 would have allowed state governments to craft their own temporary worker programs. Some proposals for H2A reforms have even sought to allow employers to hire temporary workers for year-round, rather than just seasonal, labor needs. Still, other proposals have looked to broaden the scope of the types of labor authorized under the H2 programs and the groups exempted from the H2B numerical cap. 

More recently, Representative Joaquin Castro (D-TX) introduced legislation in 2022 that aims to improve labor standards for guest workers and provide them with a path to citizenship—a point that some H2A reform bills have also adopted [PDF].

How did the COVID-19 pandemic affect these programs?

The onset of the pandemic and resulting shutdowns disrupted most temporary foreign worker programs. In March 2020, the State Department halted routine visa services at U.S. embassies and consulates, including for H1B visa holders, though efforts to resume services are ongoing in certain locations. However, officials continued to process H2 visas, even easing restrictions on these programs to ensure a steady supply of migrant farmworkers and avoid domestic food shortages.

In June 2020, Trump issued a proclamation suspending almost all new temporary work visas until at least the end of the year, citing the need to protect American jobs amid skyrocketing unemployment. (Some COVID-19 researchers and seasonal farmworkers were excluded from the order.) Business leaders who rely on workers from overseas objected to the move, while many economists argued that turning away skilled workers would undermine the country’s economic recovery.

What has Biden done?

President Biden promised to restore the visa programs that Trump halted. In February 2021, Biden revoked an order implemented under Trump that froze the issuance of new green cards and halted certain types of visas, including those for H1B and H2B holders. He also unveiled a comprehensive immigration reform bill, which proposes making temporary workers eligible for lawful prospective immigrant status and increasing the availability of employment-based green cards, among other provisions. However, it remains stalled in Congress and experts say it is unlikely to pass. 

Biden also seeks to expand the capacity of guest worker programs and streamline the overall immigration process. In a May 2021 blueprint, the administration detailed plans to admit more high-skilled workers into the United States and create new pathways for foreign entrepreneurs. The following November, DHS designated six new countries as eligible to participate in the H2 programs, and in March 2022, the administration declared that it would make an additional thirty-five thousand seasonal worker visas available to U.S. businesses in response to the increasing demand for temporary workers. In December 2022, the Departments of Labor and Homeland Security said they would increase the cap on nonimmigrant H2B visas by up to 64,716 for fiscal year 2023. And amid a growing visa backlog, some lawmakers have called on the Biden administration to increase the resources available to accelerate visa processing, which they say would help combat persistent U.S. labor shortages.