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The Native Hawaiian and OtherPacific Islander Population: 2010

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The Native Hawaiian and OtherPacific Islander Population: 2010

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Map of NHPI groups

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Together, these two groups totaled 17.3 million people. Thus, 5.6 percent of all people in the United States identified as Asian, either alone or in combination with one or more other races.

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Survey News - Volume Three, Issue 5 - U.S. Census Bureau

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People and Households. News section. Demographic data and reports from the U.S. Census Bureau

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Women and Equality: A Capabilities Approach, Nussbaum

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Women and Equality: A Capabilities Approach, Nussbaum

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Age-adjusted percent distributions (with standard errors) of type of health insurance coverage for persons under age 65 and for persons aged 65 and over, by selectedcharacteristics: United States, 2014

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Age-adjusted percent distributions (with standard errors) of type of health insurance coverage for persons under age 65 and for persons aged 65 and over, by selectedcharacteristics: United States, 2014

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% of Asians with insurance
https://www.cdc.gov/nchs/fastats/white-health.htm

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Limited English proficiency as a barrier to mental health service use: A studyof Latino and Asian immigrants with psychiatric disorders

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Limited English proficiency as a barrier to mental health service use: A studyof Latino and Asian immigrants with psychiatric disorders

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“Language barriers not only can lead to miscommunication with health care providers but also can have deleterious effects on navigating the health care system and on understanding health information and treatment (DuBard and Gizice, 2008, Flores, 2006 and Ponce et al., 2006)”

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http://www.jba-arizona.org/newsletter.html

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"Featuring Japanese exhibits, demonstrations, arts and crafts, children's activities, bonsai displays, Japanese food, Japanese beer and sake garden, games and contests, and live entertainment on 4 stages throughout Heritage & Science Park in downtown Phoenix.​"

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The Arizona Matsuri is an annual festival which celebrate Japanese culture and heritage, traditional and modern in downtown Phoenix, Arizona.

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Thai Temple is in Waddell
17212 W Maryland Ave
Waddell, AZ 85355
"Wat Promkunaram is a Thai Theravada Buddhist temple, representing the Council of Thai Bhikkhus in the U.S.A. in Arizona, at Waddell, West Phoenix suburb."

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Wat Promkunaram,Thai Buddhist Temple of Arizona

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Wat Promkunaram,Thai Buddhist Temple of Arizona, Waddell, Arizona. 2.1K likes. Wat Promkunaram is a Thai Theravada Buddhist temple, representing the Council of Thai Bhikkhus in the U.S.A. in Arizona,...

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Overlay systemic issues and community assets/access to services and supports.

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"You want to mobilize and empower the community. If you involve different
community members in constructing the asset map, the process itself can be an
organizing tool. For example, mapping local public services and identifying the
dollars spent per community member can mobilize residents to lobby city or county
council members to improve local public services."

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"As a practice based in the production of knowledge, photovoice has three main goals: (1) to enable people to record and reflect their community's strengths and concerns, (2) to promote critical dialogue and knowledge about important issues through large and small group discussion of photographs, and (3) to reach policymakers."

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Photovoice is a process by which people can identify, represent, and enhance their community through a specific photographic technique. As a practice based in the production of knowledge, photovoice has three main goals: (1) to enable people to record and reflect their community's strengths and concerns, (2) to promote critical dialogue and knowledge about important issues through large and small group discussion of photographs, and (3) to reach policymakers. Applying photovoice to public health promotion, the authors describe the methodology and analyze its value for participatory needs assessment. They discuss the development of the photovoice concept, advantages and disadvantages, key elements, participatory analysis, materials and resources, and implications for practice.

2. Wang C , Burris M , Xiang YP : Chinese village women as visual anthropologists: A participatory approach to reaching policymakers. Soc Sci Med 42(10):1391-1400, 1996.
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15. Kuttab D : Palestinian diaries: Grass roots TV production in the occupied territories.
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19. National Foundation for the Improvement of Education : Cameras in the Curriculum: A Challenge to Teacher Creativity. Vol. 2, 1983-1984. An NEA/Kodak program administered by the National Foundation for the Improvement of Education.
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20. Roter DL , Rudd RE , Frantz SC , Comings JP : Community-produced materials for health education. Public Health Rep 96:169-172, 1981.
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40. Wutchiette R , Egan D , Kohault S , Markman H , Pargament K : Assessing the need for a needs assessment. Journal of Community Psychology 12:53-60, 1984.
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50. Guyer B , Schor L , Messenger K , Prenney B , Evans F : Needs assessment under the maternal and child health services block grant. Am J Public Health 74:1014-1019, 1984.
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Photovoice: Concept, Methodology, and Use for Participatory Needs Assessment

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Photovoice is a process by which people can identify, represent, and enhance their community through a specific photographic technique. As a practice based in the production of knowledge, photovoice has three main goals: (1) to enable people to record and reflect their community's strengths and concerns, (2) to promote critical dialogue and knowledge about important issues through large and small group discussion of photographs, and (3) to reach policymakers.

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The Thai Association of Arizona was established in 1992 by Mr. Prapuk Wuthikrai. The members met once a week on Sunday at the Thai Temple, Wat Promkunaram and volunteered to help people in the Thai community. In 1994, the community registered the association as a non-profit organization. The mission of the association is to strengthen the Thai community living in Arizona. (Not sure if this is in Tempe!-couldn't find that information)

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Thai Arizona Association - Asian community website in Phoenix, AZ

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ThaiSunday.com - Asian Community Website in Phoenix, AZ

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Resources for AA & NHPI communities in TEMPE

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Resources for AA & NHPI communities in TEMPE

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Our mission and purpose is to provide awareness and education about Hawaiian and other South Pacific Islander cultures and heritage.

Besides the weekend’s festivities, we honor our annual Kokua Awardee and provide speakers or teachers for educational programs, support gifts of learning materials to libraries, provide scholarships for cultural awareness programs and education, and support community groups.

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A celebration of the Hawaiian and Polynesian cultures held each year on the 2nd weekend in March in Tempe, AZ

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ACEL's mission is to be the proving ground for Asian American Professionals, forging leaders of tomorrow through professional development, cultural awareness, community service and mentorship.
PO Box 25527 Tempe AZ 85285-5527

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Congressional Tri-Caucus Introduces 2016 Health Equity and Accountability Act with Support of National Urban League and HEAA Coalition

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Congressional Tri-Caucus Introduces 2016 Health Equity and Accountability Act with Support of National Urban League and HEAA Coalition

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"HEAA focuses on comprehensive mechanisms to address incidences of diseases that disproportionally affect communities of color, especially cancer, heart disease, hepatitis, diabetes and HIV/AIDS while expanding access to culturally and linguistically appropriate care.”

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WASHINGTON, DC (June 15, 2016) Today, Congresswoman Robin Kelly (D-IL) and Members of the Congressional Black Caucus (CBC), Congressional Hispanic Caucus (CHC) and Congressional Asian Pacific American Caucus (CAPAC) introduced the Health Equity and Accountability Act ( HEAA) of 2016 with the National Urban League leading the HEAA Coalition. HEAA was formally introduced this morning by Congresswoman Kelly, the bill's lead sponsor and the Chair of the Congressional Black Caucus Health Braintrust. HEAA builds on the advancements of the Affordable Care Act (ACA) by providing federal resources, policies, and infrastructure to eliminate health disparities in all populations, regardless of race, ethnicity, immigration status, age, ability, sex, sexual orientation, gender identity, or English proficiency.

"While we have made progress in eliminating health disparities in America, HEAA is a reminder that there is much work to be done to improve health outcomes in minority populations. It's a vital roadmap to a healthier future for all Americans," Kelly said. "Race, ethnicity, zip code or bank balance should not be determinants of health. HEAA is a thoughtful, comprehensive approach to ensuring that all Americans have the foundation they need to live healthier lives."
The Tri-Caucus has introduced HEAA in each Congress since 2007. Through the years, the bill has served as a comprehensive blueprint for achieving health equity. Past HEAA provisions have informed ACA provisions and HHS initiatives.

HEAA improves and guides federal efforts in the following vital areas: data collection and reporting; culturally and linguistically appropriate health care; health workforce diversity; health care services; health outcomes for women, children and families; mental health; high impact minority diseases; health information technology; accountability and evaluation; and addressing the social causes of health disparities.

"The barriers to obtaining quality health care are especially daunting for minority communities," said Congresswoman Michelle Lujan Grisham, chair of the Congressional Hispanic Caucus Health Task Force. "We can't just add some funding here or make a policy change there and walk away. It takes really thoughtful, comprehensive policy, like the national standards and healthcare investments in this legislation, to make a real difference."

As co-chair of the Congressional Asian Pacific American Caucus healthcare taskforce, I am excited to be an original co-sponsor of the Health Equity and Accountability Act. The Health Equity and Accountability Act of 2014 builds upon the remarkable success of the Affordable Care Act and will help reduce and eventually eliminate disparities in health status, outcomes, and life expectancy for communities of color," said Congresswoman Barbara Lee, co-chair of the Congressional Asian Pacific American Caucus Health Taskforce. "In particular, HEAA focuses on comprehensive mechanisms to address incidences of diseases that disproportionally affect communities of color, especially cancer, heart disease, hepatitis, diabetes and HIV/AIDS while expanding access to culturally and linguistically appropriate care."

"Minorities are disproportionately affected when it comes to healthcare in the United States. For a number of reasons, the Latino community remains among the highest uninsured populations. This makes our community less likely to seek out medical treatment and preventive care, resulting in some of the highest illness rates," said Linda T. Sánchez, chairwoman of the Congressional Hispanic Caucus. "Compound the lack of access with the shortage of health care staff who are able to speak their language and the Latino community is severely disadvantaged. We need to pass the Health Equity and Accountability Act because it ensures a more equitable health system for all communities."

"The Health Equity and Accountability Act is a vital component to eliminating health disparities in minority communities. This bill includes many of CAPAC's top healthcare priorities for Asian Americans, Native Hawaiians, and Pacific Islanders, including provisions for more accurate and disaggregated data collection, culturally and linguistically appropriate health care, workforce diversity, and measures to address diseases like Hepatitis B and diabetes that disproportionately impact our community," said Congresswoman Judy Chu, chair of the Congressional Asian Pacific American Caucus. "I commend Congresswoman Robin Kelly for leading this effort in the 114th Congress, and thank all of our partners in the Tri-Caucus for their dedication to this important cause."

"The Health Equity and Accountability Act (HEAA) of 2016 is vital in our efforts to advance health equity in communities of color," said G. K. Butterfield, chairman of the Congressional Black Caucus. "Health disparities are complex, particularly among the African American community, which has historically been disproportionally affected by higher risks of health issues as well as lower life expectancy. The HEAA has provided a principled, comprehensive legislative agenda that allows us to better address the gap in health equity and improve the health goals of all communities, thus providing greater access and resources for the individuals who need it the most."

"Today, despite improvements in overall health in the United States, African-American and other minority populations lag behind on nearly every measure of health care, including access to and quality of care, timeliness of care, and health outcomes," said Congressman Donald M. Payne, Jr. (NJ-10), co-chair of the Congressional Men's Health Caucus. "The Health Equity and Accountability Act is a comprehensive approach-one that builds on the successes of the Affordable Care Act to ensure that minority communities have access to the high-quality care they deserve. This is a common-sense bill that will make critical progress in advancing health equity-and I am proud to support it."

"Second to the Affordable Care Act, HEAA is the single most important healthcare bill for people of color," said Marc H. Morial, President and CEO of the National Urban League. "This bill seeks to address and eliminate many of the inequities that result in poorer health outcomes for Blacks and Latinos. It is our hope, that through the passage of this bill, we will increase cultural competency, life spans, and the quality of medical services delivered to underserved communities. The National Urban League is proud to be a leading partner to the Tri-Caucus as it relates to HEAA, and will continue to help ensure its advancement in the U.S. Congress."

The full list of partner organizations follows.
HEAA Coalition Lead Organization
National Urban League
National Organizations
30 for 30 Campaign

9to5, National Association of Working Women

ADAP Advocacy Association (aaa+)

Advocates for Youth

Aging Life Care Association™

AIDS Alliance for Women, Infants, Children, Youth & Families

The AIDS Institute

AIDS United

American Association of Birth Centers

American Association of Colleges of Pharmacy

American Association on Health and Disability

American Cancer Society Cancer Action Network

American College of Nurse-Midwives

American Heart Association

American Kidney Fund

American Psychological Association

American Public Health Association

American Society for Metabolic and Bariatric Surgery

American Society on Aging

American Thoracic Society

Asian & Pacific Islander American Health Forum

Association of Asian Pacific Community Health Organizations

Association of Black Cardiologists

Association of Minority Health Professions Schools

Association of Nurses in AIDS Care

Association of Reproductive Health Professionals

Black Women's Health Imperative

Breast Cancer Action

Caring Across Generations

Center for American Progress

CenterLink: The Community of LGBT Centers

Coalition for Disability Health Equity

Coalition for Disability Health Equity

Community Access National Network (CANN)

Community Catalyst

Directors of Health Promotion and Education

Disability Rights Education and Defense Fund (DREDF)

Empowering Pacific Islander Communities

Families USA

Family Equality Council

Family Voices

George Washington University, Department of Health Policy and Management

GLMA: Health Professionals Advancing LGBT Equality

Hepatitis Foundation International

Hispanic Dental Association (HDA)

IMPRINT

Khmer Health Advocates Inc.

Lakeshore Foundation

Law Students for Reproductive Justice

MomsRising

NAACP

NAPAFASA

NASTAD (National Alliance of State & Territorial AIDS Directors)

National Association of Certified Professional Midwives

National Association of County and City Health Officials

National Black Women's HIV/AIDS Network, Inc.

National Center for Lesbian Rights

National Center for Transgender Equality

National Coalition of STD Directors

National Collaborative for Health Equity

National Council for Diversity in the Health Professions

National Council of Asian Pacific Americans (NCAPA)

National Council of Asian Pacific Islander Physicians

National Council of Jewish Women

National Council of Jewish Women

National Council of La Raza (NCLR)

National Family Planning and Reproductive Health Association

National Health Law Program

National Hispanic Health Foundation

National Hispanic Medical Association

National Immigration Law Center

National Latina Institute for Reproductive Health

National LGBTQ Task Force Action Fund

National Network of Abortion Funds

National Partnership for Women & Families

National Viral Hepatitis Roundtable

National WIC Association

National Women's Health Network

National Women's Law Center

Institute for the Study of "Race" and Social Justice

NMAC

Obesity Action Coalition

Obesity Medicine Association

The Obesity Society

Pacific American Foundation

Planned Parenthood Federation of America

The Praxis Project

Prevention Institute

Raising Women's Voices for the Health Care We Need

Religious Coalition for Reproductive Choice

Sexuality Information and Education Council of the U.S. (SIECUS)

Shape Up America!

Sleep Research Society

Southeast Asia Resource Action Center

Summit Health Institute for Research and Education, Inc.

Upwardly Global

Welcome Back Initiative

World Education Services (WES)
State Organizations Alabama
AIDS Alabama

Tuskegee University College of Veterinary Medicine, Nursing, and Allied Health
Arizona
Asian Pacific Community in Action
California
AIDS Project Los Angeles

APLA Health & Wellness

Asian & Pacific Islander Wellness Center

California Immigrant Policy Center

California Latinas for Reproductive Justice

California Pan-Ethnic Health Network

TOFA Inc.

California Consortium of Addiction Programs and Professionals
Colorado
Colorado Organization for Latina Opportunity and Reproductive Rights (COLOR)
Connecticut
CT Coalition of Mutual Assistance Associations, Inc.

Lao Association of Connecticut, Inc.

Network 4 Health
Florida
Hispanic Health Initiatives, Inc.
Georgia
Center for Pan Asian Community Services Inc.

Morehouse School of Medicine

Vietnamese American Community of Georgia, Inc.
Illinois
ASIAN HEALTH COALITION

EverThrive Illinois
Kentucky
Kentucky Equal Justice Center
Louisiana
MQVN Community Development Corporation
Massachusetts
Southeast Asian Coalition of Central Massachusetts

DISABILITY Policy Consortium
Michigan
Healthy Asian Americans Project
Mississippi
Boat People SOS-Gulf Coast

Steps Coalition
Missouri
Empower Missouri
New Jersey
New Jersey Citizen Action
New Mexico
NM Statewide Race Gender Class Data Policy Consortium

Southwest Women's Law Center
New York
Apicha Community Health Center

Center for Independence of the Disabled, NY

Claire Heureuse Community Center, Inc.

Coalition for Asian American Children and Families

Community Service Center of Greater Williamsburg

Korean Community Services of Metropolitan New York

New Yorkers for Accessible Health Coverage

Oxford Family Group Day Care

Violence Intervention Program
North Carolina
Gaston Family Health Services

HealthNet Gaston

North Carolina Justice Center
Ohio
Asian American Community Services

Asian Services In Action

Ohio Asian American Health Coalition

Universal Health Care Action Network of Ohio
Oregon
Asian Pacific American Network of Oregon
Pennsylvania
Welcoming Center for New Pennsylvanians

Public Citizens for Children and Youth
Rhode Island
Center for Southeast Asians
South Carolina
SC Appleseed Legal Justice Center
Tennessee
Meharry Medical College

Tennessee Justice Center
Texas
Senior Community Outreach Services, Inc.
Utah
National Tongan American Society

###
FOR IMMEDIATE RELEASE
CONTACT: K. Kim Atterbury | katterbury@nul.org | (202) 629-5750

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Congressional Tri-Caucus Introduces 2016 Health Equity and Accountability Act with Support of National Urban League and HEAA Coalition

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WASHINGTON, DC (June 15, 2016) Today, Congresswoman Robin Kelly (D-IL) and Members of the Congressional Black Caucus (CBC), Congressional Hispanic Caucus (CHC) and Congressional Asian Pacific American Caucus (CAPAC) introduced the Health Equity and Accountability Act ( HEAA) of 2016 with the National Urban League leading the HEAA Coalition.

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Health Risks, Disparities and Community Responses

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Health Risks, Disparities and Community Responses

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PUBLIC-PRIVATE PARTNERSHIPS FOR DATA EQUITYApril 2016

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PUBLIC-PRIVATE PARTNERSHIPS FOR DATA EQUITYApril 2016

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California Data Disaggregation Bill Sparks Debate in Asian-American Community

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California Data Disaggregation Bill Sparks Debate in Asian-American Community

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"Those who support it, including dozens of community and civil rights groups, say separating demographic data by ethnicity — and including at least 10 additional AAPI ethnic groups — can help better expose disparities in healthcare and education. This is particularly true among Southeast Asians and Pacific Islanders, two groups that often get left out, they say."

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Lily Ding was never much the political type, but that changed in February, she said, when she attended a rally in San Francisco to protest a jury's second-degree manslaughter conviction of former New York Police Department officer Peter Liang, who fatally shot an unarmed black man by accident in 2014.

Some in the Chinese-American community believed Liang, also Chinese, was offered up as a sacrifice for white officers never indicted in police-related deaths.

"For me, it was a wake-up call," Ding, who emigrated from China 20 years ago to study, told NBC News. "I have always thought the U.S. had been very fair."

Two months later, Ding said she learned of another political fight - a movement to defeat a California bill requiring certain state education and health agencies to break down demographic data they collect by ethnicity or ancestry for Native Hawaiian, Asian, and Pacific Islander groups.

She said she heard about it on WeChat, a Chinese-language social media tool that had been used to galvanize nationwide support for Liang, and knew she had to get involved.

"To further disaggregate an already finely disaggregated population just doesn't make any sense at all," said Ding, who works as a data scientist.

The bill, known as AB-1726, has become a flashpoint in California's Asian American and Pacific Islander (AAPI) community. Those who support it, including dozens of community and civil rights groups, say separating demographic data by ethnicity - and including at least 10 additional AAPI ethnic groups - can help better expose disparities in healthcare and education. This is particularly true among Southeast Asians and Pacific Islanders, two groups that often get left out, they say.

But critics counter that the bill, introduced in the State Assembly in January, is unfair because it targets only Asians and no other race. They fear it could be a backdoor way of ending California's ban on affirmative action and say it further divides up AAPIs into unnecessary hyphenated groups.
RELATED: California Advocates Push 'AHEAD' with Data Disaggregation Bill
Some of the bill's most vociferous opposition come from parts of California's Chinese-American community. Some activists and organizers, many of them immigrants from China, see the bill as the latest in a series of threats against Chinese Americans trying to achieve social and economic equality - a claim supporters of AB-1726 say is groundless and misplaced.

Both sides have spearheaded online petitions. As of Friday morning, one in support of the bill, created by 18 Million Rising, collected roughly 1,700 signatures. The other against it, on change.org, had approximately 14,000.

An amended version of the bill, authored by Democratic Assemblyman Rob Bonta, passed California's Senate by a unanimous vote of 39-0 on Tuesday and will head to Gov. Jerry Brown, a Democrat, for signing. One major difference in the bill's revised language is that AB-1726 now applies to data collected only by the state Department of Public Health - not agencies overseeing public universities or colleges.

The new ethnic or national origin groups included in the bill are Bangladeshi, Hmong, Indonesian, Malaysian, Pakistani, Sri Lankan, Taiwanese, Thai, Fijian, and Tongan. The move would bring California's collection system in line with that of the U.S. Census.
RELATED: California Governor Vetoes Bill Aimed at Addressing Disparities in AAPI Communities
Brown, however, vetoed a similar bill Bonta introduced last year.

"Dividing people into ethnic or other subcategories may yield more information, but not necessarily greater wisdom about what actions should follow," the governor wrote at the time.

Bonta told NBC News he's excited his new bill passed the Senate, even though it won't apply to the state's public universities and colleges - many of which voluntarily collect and tabulate such data already.

"With this bill, we are in a better place today than we were yesterday," he said. "Our goal is to make progress, and we think tremendous progress can be made and knowledge learned that's incredibly valuable through disaggregated data."

The federal government has been grouping people in the U.S. since the very first Census was conducted in 1790. Over time, the categories have changed, and different groups have been added - Chinese in 1860, Japanese in 1870, Filipinos, Koreans, and Hindus in 1920, according to Pew.

Since the 1990s, according to Bonta's office, California law has required state agencies, boards, and commissions to collect data for at least 11 AAPI categories. Those groups include Chinese, Japanese, Filipino, Korean, Vietnamese, Asian Indian, Laotian, Cambodian, Hawaiian, Guamanian, and Samoan.

It also requires that California's Department of Industrial Relations and Department of Fair Employment and Housing gather and tabulate data for the 10 additional AAPI categories in AB-1726. Roughly 15 percent of California's population is Asian and 0.5 percent Native Hawaiian or other Pacific Islander, according to the Census.

Originally, Bonta's bill had asked the University of California system, and required California Community Colleges and the California State University system, to collect data on Native Hawaiians and Asian Pacific Islanders, including the 10 new ethnic groups, and also issue reports on student admissions, enrollment, completion, and graduation rates.

This mandate, which would have standardized collection among state school systems, could have proven particularly useful for Southeast Asian students who tend to have lower academic achievement rates, a data point often lost in the stereotype that all Asian students do well in school, bill supporters say.

"You're better able to assess risks among your student populations," Karthick Ramakrishnan, a public policy professor at the University of California, Riverside, told NBC News. "That is why these educational institutions do this, so they can better understand their student populations and they can better serve their student populations."

But following protests from some in California's Chinese-American community, the higher education data collection requirement was removed from Bonta's bill. One of those who helped galvanize opposition against AB-1726 was Mei Mei Huff, wife of Republican state Sen. Bob Huff.

Bob Huff called for a rally Aug. 10 at the state Capitol, which Ding, the Liang supporter, helped organize. In a press release, he likened the data collection in AB-1726 to what Congress used to write and pass the Chinese Exclusion Act of 1882, which restricted immigration from China, and what the U.S. Secret Service employed to put Japanese Americans in internment camps after the attack on Pearl Harbor.

On Tuesday, Bob Huff was one of the 39 senators who voted unanimously in favor of the amended bill.

"On the one hand, I'm happy to see the author took out all the provisions related to education, because I think that was the biggest concern of our community," Mei Mei Huff, who was born in Taiwan and studied in the U.S., told NBC News. "On the other hand, it does not address the question why the bill only focuses on Asians and not other ethnic groups. We remain very concerned."

In arguing against AB-1726, opponents often ask why there isn't legislation that requires demographic data be broken down for, say, whites or Latinos. Ramakrishnan, the UC Riverside professor, noted that the Census already collects "detailed origin data" for the Hispanic or Latino population, allowing respondents to choose such identifiers as Mexican or Dominican, among others.

But he added that unlike Asian Pacific Islanders and Native Hawaiians, who represent more than 50 ethnic backgrounds and speak over 100 different languages, Hispanics and Latinos simply haven't been asking for disaggregation.

"It's just that in the education and health context, there has not been a major push because people have not found huge differences by national origin on many of these outcomes," Ramakrishnan said.

Much of the wariness among Chinese Americans about data collection circles back to another controversial issue: higher education and affirmative action, they said. Some organizers and activists involved in the AB-1726 fight also took up the battle two years ago to stop passage of California's Senate Constitutional Amendment 5 (SCA-5), which would have ended the state's ban on affirmative action in college admissions.

Proposition 209, passed by public vote 20 years ago, forbids the use of race, sex, color, ethnicity, or national origin for public college or university admissions decisions in California. Many Chinese-American parents fear that should the ban be lifted, Chinese-American enrollment rates at prestigious University of California schools will plummet, nixing opportunities for their kids to earn admission to good state schools based on merit, according to Huff.

"That was a wake up call to the Asian, especially the Chinese community," Huff, who chairs the San Gabriel Valley chapter of the Lincoln Club, a Republican political action committee, said. "That's why you see all this opposition now, simply because what happened in 2014. They are very concerned that bills such as AB-1726 will just be like a back door seeking to overturn Proposition 209."

Ding agreed, adding that Asian-American groups have also filed complaints with the federal Education Department, accusing Ivy League schools of discriminating against Asian Americans in the admissions process.

"SCA-5 was shut down by the Asian-American community as a whole, because everybody could see the intention of that," said Ding, a committee member of the Silicon Valley Chinese Association. "So they figured they're not going to be able to pass that, so they reenacted AB-1726."

Bonta, the bill's author, said AB-1726 has nothing to do with affirmative action whatsoever.

"This bill makes no policy decisions besides the fact that we should collect disaggregated data and that if we have more information, it can help guide our policy decisions," he said.

Ramakrishnan said he believes these fears stem from a misunderstanding of data disaggregation.

"If you connect data disaggregation to affirmative action and also to the Chinese Exclusion Act and Japanese internment - essentially if you're able to increase anxiety and fear among people, that they'll not only be shut out of universities but also may be kicked out of the United States because people are finding out who the Chinese are - that will get people mobilized, that will get people to the streets," he said.

If AB-1726 is signed into law, it would require the state Department of Public Health, beginning July 2022 and depending on funding, to collect demographic data broken down by ethnicity or ancestry for Native Hawaiians and Asian and Pacific Islanders. The reports would include rates for major diseases, leading causes of death, subcategories for leading causes of death, pregnancy rates, and housing numbers.

Ramakrishnan said there are significant differences among Asians when it comes to risks for Hepatitis B, cancer, and cardiovascular disease. Requiring this data to be categorized by ethnicity helps the Department of Public Health better understand the health risks of each group and structure their programs accordingly, he said.

"We're just able to have much better public policy if we're able to compare apples to apples, as opposed to different agencies in California collecting this data in vastly different ways, so that we're not able to match up to what's going on on the federal level," Ramakrishnan added.

But Ding raised concerns about the culling and reporting of such numbers. She said allowing respondents to choose their own ethnicity could lead to inaccurate and unscientific results. She said she also believes health statistics in California should be reported for all racial and ethnic groups, not just Asians.

For Bonta, who said criticism of his bill to a "very small but very vocal group from the Chinese community," separating data into ethnic groups is something that can help not just AAPIs but also Latinos, blacks, and whites.

He added that other races weren't included in this bill because of budgetary and appropriation constraints.

"The bigger we make the bill, the more expensive it is, the less likely it is to pass," he said. "We wanted to pass something in an area where we can add tremendous value, where the community was asking for it, where the diversity in the AAPI community really increases the value that it can provide."
RELATED: New Data Disaggregation Initiative Announced by Dept. of Education
Bonta said disaggregation for other communities should be taken up in the future if there's interest. For its part, the federal Education Department invested $1 million in May to offer grants to encourage state education agencies to evaluate disaggregated data for English learners and AAPI groups, beyond the existing seven racial and ethnic categories. California did not apply for the grant since its school districts already collect that data.

For Ding and Mei Mei Huff, though, any disaggregation is already too much, they say.

"It's reminding Asian Americans that you are not truly American," Ding said.
Follow NBC Asian America on Facebook, Twitter, Instagram, and Tumblr.

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California Data Disaggregation Bill Sparks Debate in Asian-American Community

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Lily Ding was never much the political type, but that changed in February, she said, when she attended a rally in San Francisco to protest a jury's second-degree manslaughter conviction of former New York Police Department officer Peter Liang, who fatally shot an unarmed black man by accident in 2014.

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Cancer screening behaviours among South Asian immigrants in the UK, US and Canada: a scoping study

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Cancer screening behaviours among South Asian immigrants in the UK, US and Canada: a scoping study

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"A thematic analysis uncovered four dominant themes: (i) beliefs
and attitudes towards cancer and screening included centrality of family,
holistic healthcare, fatalism, screening as unnecessary and emotion-laden
perceptions; (ii) lack of knowledge of cancer and screening related to not
having heard about cancer and its causes, or lack of awareness of
screening, its rationale and/or how to access services; (iii) barriers to access
including individual and structural barriers; and (iv) gender differences in
screening uptake and their associated factors."

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Health Care Access and Utilization Among US-Bornand Foreign-Born Asian Americans

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Health Care Access and Utilization Among US-Bornand Foreign-Born Asian Americans

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"In particular, those with lower household income were less likely to have a regular source of medical care or to see a physician. Moreover, Asian women were more likely than men to have a higher level of primary care access and utilization. This finding is consistent with previous research that showed that women have more of a willingness to seek care for sickness and prevention." (pg. 734)

" Even after adjusting for covariates, foreign-born Asian respondents were significantly more likely to report poorer access to care. Foreign-born individuals also reported less use of health care services, including office visits, seen/talked to a general doctor, and seen/talked to a medical specialist during the past 12 months."

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Addressing a Growing Community’s Health Needs: ProjectSAHNA (South Asian Health Needs Assessment)

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Addressing a Growing Community’s Health Needs: ProjectSAHNA (South Asian Health Needs Assessment)

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"South Asian immigration to the US is typically described as occurring in four waves."

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Bangladeshi Immigrants in New York City: A Community Based Health Needs Assessment of a Hard to Reach Population

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Bangladeshi Immigrants in New York City: A Community Based Health Needs Assessment of a Hard to Reach Population

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"Poor health behaviors and high prevalence
of cardiovascular risk factors observed in this group suggest
the need for early health promotion and prevention
interventions."

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Asian American Health Research: What Community Agencies on the Front LineNeed to Know

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Asian American Health Research: What Community Agencies on the Front LineNeed to Know

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"For instance, poverty rates approach 30% for some Asian American subgroups. It is estimated that Asian Americans constitute close to
50% of the 1.4 million Americans chronically infected with hepatitis B (HBV), even though they constitute only 4% of the
nation’s population.1
Asian Americans also have the highest race-specific rate of tuberculosis incidence2 and underutilize
preventive services such as colorectal, breast, and cervical cancer
screenings when compared with non-Hispanic Whites.
Furthermore, selected subgroups of Asian Americans have
high rates of tobacco use.

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Barriers to HealthcareAmong Asian Americans

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Barriers to HealthcareAmong Asian Americans

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"The authors argue that healthcare policy makers and researchers should consider Asian Americans as members of discrete ethnic groups with unique healthcare needs. "

" In the United States, however, there is not as great a focus on parity in healthcare among all groups, as in other countries, thus leading to health disparities regarding which individuals and groups receive healthcare. Despite the public’s view of Asian Americans as the financially well-to-do ‘‘model minority,’’ the poverty rate for Asian Americans as a group is actually higher than that of Caucasians (U.S. Census Bureau, 2004b)."

" Although unemployment rates among Asian Americans are relatively low, many Asian Americans do not have health insurance. - This is because many Asian Americans work for small businesses or have multiple low-wage jobs, which typically do not offer health insurance (Takada et al., 1998). In fact, whereas approximately 26% of all Americans are covered by employer-sponsored health insurance, only 6% of Asian Americans are covered by employer-sponsored health insurance (U.S. Census Bureau, 2007)."

" Illegal Asian immigrants experience other health access problems. Due to their illegal immigrant status, most of them are not allowed to hold jobs that offer health insurance or purchase health insurance policies and do not qualify for government-sponsored insurance. To date, most of the studies on health insurance coverage focus on Asian Americans who have legal residence, thus limiting our understanding of healthcare for Asian Americans residing in the United States illegally. (pg. 292-293) "

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Ethnic Variation in Access to Health Care of Asian Americans Who are Not U.S. Citizens: Chinese, Korean, and Vietnamese Ethnic Groups

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Ethnic Variation in Access to Health Care of Asian Americans Who are Not U.S. Citizens: Chinese, Korean, and Vietnamese Ethnic Groups

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"citizenship status is an important factor related to health care access among
immigrants.1,2 Non- U.S. citizens have lower levels of health care access than their
U.S. citizen counterparts. 3
In addition to unfamiliarity with the U.S. health care system and limited English proficiency,4,5 non- U.S. citizens encounter greater difficulties than naturalized or native- born citizens in affording health care. In particular, as a result of the Welfare Reform Act of 1996, non- U.S. citizen immigrants are no longer eligible for federally funded Medicaid for their first five years of residence in the U.S.3 Accordingly, non- U.S. citizens have significantly lower rates of health insurance coverage than both naturalized and native- born citizens"

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Medicaid Expansion and Healthcare Access: Lessons from AsianAmerican and Pacific Islander Experiences in California

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Medicaid Expansion and Healthcare Access: Lessons from AsianAmerican and Pacific Islander Experiences in California

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" Language barriers noted as a significant impediment to Medicaid enrollment in the literature [5, 9]  were rarely mentioned by  FG participants, most of whom reported receiving in-language assistance from community assisters.  "

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Health Problems of Korean Americans: Access to Health Care

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Health Problems of Korean Americans: Access to Health Care

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Koreans, as with other immigrant populations, have difficulties accessing the US health system. The healthcare system is difficult to navigate and lack of English proficiency compounds the problems. In addition many Korean immigrants lack health insurance. Large proportions of Korean Americans are uninsured (Carrasquillo O., et al., 2000). In Los Angeles County, the city with the largest number of Koreans outside of Korea, the proportion of the uninsured is more than 40%. (Brown, E.R., et. al., 2001). Many Korean Americans in Los Angeles are self-employed or work in small businesses that commonly do not provide health insurance, which may explain the large numbers of uninsured. (Brown, E.R., et. al., 2000).

In addition older recent Korean immigrants do not quality for Medicare. Many of their older Koreans immigrate to join their adult children in the US. The high rates of uninsured persons and inability to quality for Medicare for recent elderly Korean immigrants pose as important barriers to access to healthcare.

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Health Problems of Korean Americans: Access to Health Care

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Koreans, as with other immigrant populations, have difficulties accessing the US health system. The healthcare system is difficult to navigate and lack of English proficiency compounds the problems. In addition many Korean immigrants lack health insurance. Large proportions of Korean Americans are uninsured (Carrasquillo O., et al., 2000).

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Why Do So Many Asians Own Their Own Businesses?

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Why Do So Many Asians Own Their Own Businesses?

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Koreans - 24%

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Asian Small Businesses & Self Employment : Asian-Nation :: Asian American History, Demographics, & Issues

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Article on the history and contemporary characteristics of Asian small businesses, self-employment, and entrepreneurship, including why Asians open their own businesses and the issues and conflicts that they face with many of their Blacks and Hispanic/Latino customers.

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"Why do Koreans concentrate in small business?"

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Korean Americans : Asian-Nation :: Asian American History, Demographics, & Issues

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Article summarizing the history and contemporary characteristics of the Korean American community.

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Testimonials

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Our workforce communications platform gives you one place to plan, create, publish, and measure your employee communications. You focus on content and strategy, and let our platform do the rest.

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Top Workforce Communications Platform for the Enterprise - SocialChorus

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Our workforce communications platform gives you one place to plan, create, publish, and measure your employee communications. You focus on content and strategy, and let our platform do the rest.

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Korean Immigrants in the United States

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Historically, Korean immigration to the United States has been driven by political, economic, and military relations between the two countries, opening up after restrictions on immigration from Asia to the United States were lifted in 1965. In 2015, approximately 1 million Korean immigrants (overwhelmingly from South Korea) resided in the United States, representing 2.4 percent of the 43.3 million U.S. immigrants.

The number of Korean immigrants in the United States grew rapidly after the Immigration Act of 1965 removed restrictions on Asian migration: The population increased seven-fold from 39,000 in 1970 to 290,000 in 1980, then nearly doubled to 568,000 in 1990 and again to 1.1 million in 2010 (see Figure 1). While the earlier waves consisted largely of unskilled laborers and their families, contemporary Korean immigration boasts high socioeconomic standing and Koreans are generally considered among the most successful immigrant groups.

In recent years, the Korean immigrant population in the United States has been stagnant. As economic and political conditions in South Korea have improved, fewer people have been interested in emigrating. Between 2010 and 2015, the Korean population in the United States decreased slightly from 1.1 million to 1 million (or by about 4 percent). The number of Korean students enrolling in U.S. higher education institutions also dropped 4 percent, from 64,000 in school year (SY) 2014-15 to 61,000 in SY 2015-16. While South Korean students used to represent the third largest group of international students, they were surpassed in SY 2015-16 by students from Saudi Arabia (61,300). At the same time, some immigrants have returned to South Korea to take advantage of economic and business opportunities, particularly as the country makes an effort to court return migration.
Figure 1. Korean Immigrant Population in the United States, 1980-2015
Source: Data from U.S. Census Bureau 2006, 2010, and 2015 American Community Surveys (ACS), and Campbell J. Gibson and Kay Jung, "Historical Census Statistics on the Foreign-born Population of the United States: 1850-2000" (Working Paper no. 81, U.S. Census Bureau, Washington, DC, February 2006), available online.

However, in 2015 the United States was still home to the largest South Korean immigrant population in the world, followed by Japan (522,000), China (187,000), and Canada (144,000). Meanwhile, the majority of North Korean emigrants lived in Kazakhstan (62,000), the United Kingdom (19,000), Russia (11,000), and the Philippines (6,000), according to mid-2015 estimates by the United Nations Population Division. Click here to view an interactive map showing where migrants from the Korean peninsula and elsewhere have settled worldwide.

Most Korean immigrants (from either South or North Korea) who obtain lawful permanent residence in the United States (also known as receiving a green card) qualify through employment sponsorship or as immediate relatives of U.S. citizens. Compared to the total foreign-born population, Korean immigrants had higher education and income levels, experienced less poverty, and were less likely to lack health insurance, but were more likely to be Limited English Proficient (LEP).

Using data from the U.S. Census Bureau (the most recent 2015 American Community Survey [ACS] as well as pooled 2011-15 ACS data), the Department of Homeland Security Yearbook of Immigration Statistics, and World Bank annual remittance data, this Spotlight provides information on the Korean immigrant population in the United States, focusing on its size, geographic distribution, and socioeconomic characteristics.

Click on the bullet points below for more information:
Distribution by State and Key Cities
As of 2011-15, almost half of all Korean immigrants resided in three states: California (31 percent), New York (9 percent), and New Jersey (7 percent). The top four counties with Korean immigrants were Los Angeles County and Orange County in California, Queens County in New York, and Bergen County in New Jersey. Together, the four counties accounted for about 29 percent of the total Korean immigrant population in the United States.
Figure 2. Top Destination States for Korean Immigrants in the United States, 2011-15
Note: Pooled 2011-15 ACS data were used to get statistically valid estimates at the state and metropolitan statistical area levels, for smaller-population geographies. Not shown are populations in Alaska and Hawaii, which are small in size; for details, visit the Migration Policy Institute (MPI) Data Hub for an interactive map showing geographic distribution of immigrants by state and county, available online.
Source: MPI tabulation of data from U.S. Census Bureau pooled 2011-15 ACS.

Click here for an interactive map that shows the geographic distribution of immigrants by state and county. Select Korea from the dropdown menu to see which states and counties have the highest distributions of Korean immigrants.

In the 2011-15 period, the U.S. cities with the greatest number of Korean immigrants were the Los Angeles, New York, and Washington, DC metropolitan areas, accounting for 40 percent of Korean immigrants.

Click here for an interactive map that highlights the metropolitan areas with the highest concentrations of immigrant groups. Select Korea from the dropdown menu to see which metropolitan areas have the highest concentrations of Korean immigrants.
English Proficiency
In 2015, about 52 percent of Korean immigrants (ages 5 and older) reported limited English proficiency, compared to 49 percent of the overall foreign-born population. However, Korean immigrants were slightly more likely to speak only English at home (18 percent) than U.S. immigrants overall (16 percent).
Note: Limited English proficiency refers to those who indicated on the ACS questionnaire that they spoke English less than "very well." Age, Education, and Employment
Korean immigrants have much higher educational attainment than the overall foreign- and native-born populations. In 2015, more than half (53 percent) of Korean immigrants ages 25 and over had a bachelor's degree or higher, compared to 29 percent of the total U.S. foreign-born population and 31 percent of the native-born population.

The Korean immigrant population was older than the overall U.S. immigrant population and the native-born population. The median age of Korean immigrants was 46 years, compared to 44 for the foreign-born population overall and 36 for the native-born population. In 2015, 77 percent of Korean immigrants were of working age (18 to 64), a slightly lower share than among the overall foreign-born population (80 percent) but higher than the native-born population (60 percent; see Table 2).

Korean immigrants participate in the labor force at a lower rate than the overall immigrant and native-born populations. In 2015, about 60 percent of Korean immigrants (ages 16 and over) were in the civilian labor force, compared to 66 percent and 62 percent of the overall foreign-born and native-born populations, respectively. Lower workforce participation by Korean women (52 percent, versus 70 percent for Korean men) is one reason behind the lower rate.

More than half of Korean immigrants were employed in management, business, science, and arts occupations (51 percent), a level significantly higher than the overall foreign- and native-born populations. Koreans were also much less likely to be employed in natural resources, construction, and maintenance occupations (3 percent) or production, transportation, and material moving occupations (8 percent) compared to the other two groups (see Figure 4).
Figure 4. Employed Workers in the Civilian Labor Force (ages 16 and Older) by Occupation and Origin, 2015
Source: MPI tabulation of data from the U.S. Census Bureau 2015 ACS.
Income and Poverty
Korean immigrants had higher incomes than the total foreign- and native-born populations. In 2015, median household income among Korean immigrants was $62,000, compared to $51,000 and $56,000 for the immigrant and native-born populations, respectively.

Korean immigrants were less likely than the overall foreign-born population to experience poverty. In 2015, 14 percent of Korean immigrants lived in poverty (the same rate as for the U.S. born), compared to 17 percent for the overall foreign-born population.
Immigration Pathways and Naturalization
In 2015, 61 percent of the 1 million Korean immigrants in the United States were naturalized U.S. citizens-a share much higher than the 48 percent share for the overall foreign-born population.

Korean immigrants were more likely than immigrants overall to have entered the United States before 2000. Most Korean immigrants (63 percent) arrived before 2000, followed by 24 percent who arrived between 2000 and 2009, and 14 percent in 2010 and after. Meanwhile, 57 percent of all immigrants in the United States arrived prior to 2000 (see Figure 5).
Figure 5. Korean Immigrants and All Immigrants in the United States by Period of Arrival, 2015
Source: MPI tabulation of data from the U.S. Census Bureau 2015 ACS.
Figure 6. Immigration Pathways of Korean Immigrants and All Immigrants in the United States, 2015
In fiscal year (FY) 2015, the majority of the 17,000 Korean immigrants who became lawful permanent residents (LPRs) in the United States were sponsored by employers (56 percent) or immediate relatives of U.S. citizens (38 percent). Virtually no Koreans became LPRs in 2015 via the Diversity Visa Lottery or as refugees.
Unauthorized Immigrants
Notes: Family-sponsored: Includes adult children and siblings of U.S. citizens as well as spouses and children of green-card holders. Immediate relatives of U.S. citizens: Includes spouses, minor children, and parents of U.S. citizens. Diversity Visa Lottery: The Immigration Act of 1990 established the Diversity Visa Lottery to allow entry to immigrants from countries with low rates of immigration to the United States. The law states that 55,000 diversity visas are made available each fiscal year. Nationals of North Korea are eligible to apply for the diversity visa, but nationals of South Korea are not.
Source: MPI tabulation of data from Department of Homeland Security (DHS), 2015 Yearbook of Immigration Statistics (Washington, DC: DHS Office of Immigration Statistics, 2016), available online.

Approximately 198,000 Korean immigrants resided in the United States without authorization in the 2010-14 period, representing 2 percent of the total 11 million unauthorized population, according to MPI estimates.

Click here for an interactive data tool showing top states and counties of residence for unauthorized immigrants in the United States by country or region of origin.

Furthermore, as of 2016, an estimated 52,000 unauthorized youth from Korea were eligible for work authorization and relief from deportation through the Deferred Action for Childhood Arrivals (DACA) program, launched in 2012. At the end of September 2016, 7,693 South Korean unauthorized youth had applied for the program and a total of 7,069 petitions had been approved, according to the most recent data available from U.S. Citizenship and Immigration Services.
Health Coverage
Click here for two interactive data tools showing estimates of DACA-eligible unauthorized immigrant populations for top states and counties, and application rates by country of origin.
Figure 7. Health Insurance Coverage by Origin, 2015
In 2015, Korean immigrants were less likely to be uninsured (13 percent) than the overall immigrant population (22 percent). In terms of the source of coverage, Korean immigrants and the native born were covered by private health insurance at the same rate (69 percent), but Korean immigrants were less likely than both the native- and foreign-born populations to have public coverage (see Figure 7).
Diaspora
Note: The sum of shares by type of insurance is likely to be greater than 100 because people may have more than one type of insurance.
Source: MPI tabulation of data from the U.S. Census Bureau 2015 ACS.
Remittances
In addition to the 1 million immigrants born in Korea who now reside in the United States, an almost equal number (900,000) were born outside of Korea (including in the United States) but report Korean ancestry. Together, the two groups comprise the 1.9 million Korean diaspora in the United States, according to tabulations from the U.S. Census Bureau 2015 ACS.

Global remittances sent to South Korea via formal channels equaled $6.5 billion in 2015, down slightly from $6.6 billion in 2014, about 0.5 percent of the country's gross domestic product (GDP). Remittances received by the South Koreans have nearly tripled since 1990, according to data from the World Bank. In 2015, the United States was the top source of remittances sent to South Korea, sending $2.9 billion to the country.
Sources
V isit the Data Hub's collection of interactive remittances tools, which track remittances by inflow and outflow, between countries, and over time.

Department of Homeland Security (DHS), Office of Immigration Statistics. 2016. 2015 Yearbook of Immigration Statistics. Washington, DC: DHS Office of Immigration Statistics. Available online.

Gibson, Campbell J. and Kay Jung. 2006. Historical Census Statistics on the Foreign-born Population of the United States: 1850-2000. Working Paper no. 81, U.S. Census Bureau, Washington, DC, February 2006. Available online.

Institute of International Education (IIE). 2016. Open Doors Report on International Educational Exchange. Washington, DC: IIE. Available online.

U.S. Census Bureau. 2016. 2015 American Community Survey. American FactFinder. Available online.

---. 2010. 1850-2000 Decennial Census and 2000-2015 ACS. Accessed from Steven Ruggles, J. Trent Alexander, Katie Genadek, Ronald Goeken, Matthew B. Schroeder, and Matthew Sobek, Integrated Public Use Microdata Series: Version 5.0 [Machine-readable database]. Minneapolis: University of Minnesota, 2016. Available online.

U.S. Citizenship and Immigration Services (USCIS). 2016. Number of I-821D, Consideration of Deferred Action for Childhood Arrivals by Fiscal Year, Quarter, Intake, Biometrics and Case Status: 2012-2016 (September 30). Available online.

World Bank Prospects Group. 2016. Annual Remittances Data, April 2016 update. Available online.

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Jie Zong, Jeanne Batalova Jie Zong and Jeanne Batalova

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Approximately 1 million Korean immigrants (overwhelmingly from South Korea) lived in the United States in 2015, representing 2.4 percent of the U.S. immigrant population. While earlier waves consisted largely of unskilled laborers and their families, contemporary Korean immigration boasts high socioeconomic standing and Koreans are generally considered among the most successful immigrant groups.

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U.S. Immigrant Population by Metropolitan Statistical Area (MSA), 2011-2015*

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U.S. Immigrant Population by Metropolitan Area

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Use the dynamic map below to instantly display the metropolitan areas in which large number of immigrants resided during the 2013-2017 period. The colors represent the immigrant share of the total population for the metropolitan area, and the bubble size reflects larger concentrations of immigrants.

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"Most Korean immigrants (from either South or North Korea) who obtain lawful permanent residence in the United States (also known as receiving a green card) qualify through employment sponsorship or as immediate relatives of U.S. citizens. Compared to the total foreign-born population, Korean immigrants had higher education and income levels, experienced less poverty, and were less likely to lack health insurance, but were more likely to be Limited English Proficient (LEP)."

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Historically, Korean immigration to the United States has been driven by political, economic, and military relations between the two countries, opening up after restrictions on immigration from Asia to the United States were lifted in 1965. In 2015, approximately 1 million Korean immigrants (overwhelmingly from South Korea) resided in the United States, representing 2.4 percent of the 43.3 million U.S. immigrants.

The number of Korean immigrants in the United States grew rapidly after the Immigration Act of 1965 removed restrictions on Asian migration: The population increased seven-fold from 39,000 in 1970 to 290,000 in 1980, then nearly doubled to 568,000 in 1990 and again to 1.1 million in 2010 (see Figure 1). While the earlier waves consisted largely of unskilled laborers and their families, contemporary Korean immigration boasts high socioeconomic standing and Koreans are generally considered among the most successful immigrant groups.

In recent years, the Korean immigrant population in the United States has been stagnant. As economic and political conditions in South Korea have improved, fewer people have been interested in emigrating. Between 2010 and 2015, the Korean population in the United States decreased slightly from 1.1 million to 1 million (or by about 4 percent). The number of Korean students enrolling in U.S. higher education institutions also dropped 4 percent, from 64,000 in school year (SY) 2014-15 to 61,000 in SY 2015-16. While South Korean students used to represent the third largest group of international students, they were surpassed in SY 2015-16 by students from Saudi Arabia (61,300). At the same time, some immigrants have returned to South Korea to take advantage of economic and business opportunities, particularly as the country makes an effort to court return migration.
Figure 1. Korean Immigrant Population in the United States, 1980-2015
Source: Data from U.S. Census Bureau 2006, 2010, and 2015 American Community Surveys (ACS), and Campbell J. Gibson and Kay Jung, "Historical Census Statistics on the Foreign-born Population of the United States: 1850-2000" (Working Paper no. 81, U.S. Census Bureau, Washington, DC, February 2006), available online.

However, in 2015 the United States was still home to the largest South Korean immigrant population in the world, followed by Japan (522,000), China (187,000), and Canada (144,000). Meanwhile, the majority of North Korean emigrants lived in Kazakhstan (62,000), the United Kingdom (19,000), Russia (11,000), and the Philippines (6,000), according to mid-2015 estimates by the United Nations Population Division. Click here to view an interactive map showing where migrants from the Korean peninsula and elsewhere have settled worldwide.

Most Korean immigrants (from either South or North Korea) who obtain lawful permanent residence in the United States (also known as receiving a green card) qualify through employment sponsorship or as immediate relatives of U.S. citizens. Compared to the total foreign-born population, Korean immigrants had higher education and income levels, experienced less poverty, and were less likely to lack health insurance, but were more likely to be Limited English Proficient (LEP).

Using data from the U.S. Census Bureau (the most recent 2015 American Community Survey [ACS] as well as pooled 2011-15 ACS data), the Department of Homeland Security Yearbook of Immigration Statistics, and World Bank annual remittance data, this Spotlight provides information on the Korean immigrant population in the United States, focusing on its size, geographic distribution, and socioeconomic characteristics.

Click on the bullet points below for more information:
Distribution by State and Key Cities
As of 2011-15, almost half of all Korean immigrants resided in three states: California (31 percent), New York (9 percent), and New Jersey (7 percent). The top four counties with Korean immigrants were Los Angeles County and Orange County in California, Queens County in New York, and Bergen County in New Jersey. Together, the four counties accounted for about 29 percent of the total Korean immigrant population in the United States.
Figure 2. Top Destination States for Korean Immigrants in the United States, 2011-15
Note: Pooled 2011-15 ACS data were used to get statistically valid estimates at the state and metropolitan statistical area levels, for smaller-population geographies. Not shown are populations in Alaska and Hawaii, which are small in size; for details, visit the Migration Policy Institute (MPI) Data Hub for an interactive map showing geographic distribution of immigrants by state and county, available online.
Source: MPI tabulation of data from U.S. Census Bureau pooled 2011-15 ACS.

Click here for an interactive map that shows the geographic distribution of immigrants by state and county. Select Korea from the dropdown menu to see which states and counties have the highest distributions of Korean immigrants.

In the 2011-15 period, the U.S. cities with the greatest number of Korean immigrants were the Los Angeles, New York, and Washington, DC metropolitan areas, accounting for 40 percent of Korean immigrants.

Click here for an interactive map that highlights the metropolitan areas with the highest concentrations of immigrant groups. Select Korea from the dropdown menu to see which metropolitan areas have the highest concentrations of Korean immigrants.
English Proficiency
In 2015, about 52 percent of Korean immigrants (ages 5 and older) reported limited English proficiency, compared to 49 percent of the overall foreign-born population. However, Korean immigrants were slightly more likely to speak only English at home (18 percent) than U.S. immigrants overall (16 percent).
Note: Limited English proficiency refers to those who indicated on the ACS questionnaire that they spoke English less than "very well." Age, Education, and Employment
Korean immigrants have much higher educational attainment than the overall foreign- and native-born populations. In 2015, more than half (53 percent) of Korean immigrants ages 25 and over had a bachelor's degree or higher, compared to 29 percent of the total U.S. foreign-born population and 31 percent of the native-born population.

The Korean immigrant population was older than the overall U.S. immigrant population and the native-born population. The median age of Korean immigrants was 46 years, compared to 44 for the foreign-born population overall and 36 for the native-born population. In 2015, 77 percent of Korean immigrants were of working age (18 to 64), a slightly lower share than among the overall foreign-born population (80 percent) but higher than the native-born population (60 percent; see Table 2).

Korean immigrants participate in the labor force at a lower rate than the overall immigrant and native-born populations. In 2015, about 60 percent of Korean immigrants (ages 16 and over) were in the civilian labor force, compared to 66 percent and 62 percent of the overall foreign-born and native-born populations, respectively. Lower workforce participation by Korean women (52 percent, versus 70 percent for Korean men) is one reason behind the lower rate.

More than half of Korean immigrants were employed in management, business, science, and arts occupations (51 percent), a level significantly higher than the overall foreign- and native-born populations. Koreans were also much less likely to be employed in natural resources, construction, and maintenance occupations (3 percent) or production, transportation, and material moving occupations (8 percent) compared to the other two groups (see Figure 4).
Figure 4. Employed Workers in the Civilian Labor Force (ages 16 and Older) by Occupation and Origin, 2015
Source: MPI tabulation of data from the U.S. Census Bureau 2015 ACS.
Income and Poverty
Korean immigrants had higher incomes than the total foreign- and native-born populations. In 2015, median household income among Korean immigrants was $62,000, compared to $51,000 and $56,000 for the immigrant and native-born populations, respectively.

Korean immigrants were less likely than the overall foreign-born population to experience poverty. In 2015, 14 percent of Korean immigrants lived in poverty (the same rate as for the U.S. born), compared to 17 percent for the overall foreign-born population.
Immigration Pathways and Naturalization
In 2015, 61 percent of the 1 million Korean immigrants in the United States were naturalized U.S. citizens-a share much higher than the 48 percent share for the overall foreign-born population.

Korean immigrants were more likely than immigrants overall to have entered the United States before 2000. Most Korean immigrants (63 percent) arrived before 2000, followed by 24 percent who arrived between 2000 and 2009, and 14 percent in 2010 and after. Meanwhile, 57 percent of all immigrants in the United States arrived prior to 2000 (see Figure 5).
Figure 5. Korean Immigrants and All Immigrants in the United States by Period of Arrival, 2015
Source: MPI tabulation of data from the U.S. Census Bureau 2015 ACS.
Figure 6. Immigration Pathways of Korean Immigrants and All Immigrants in the United States, 2015
In fiscal year (FY) 2015, the majority of the 17,000 Korean immigrants who became lawful permanent residents (LPRs) in the United States were sponsored by employers (56 percent) or immediate relatives of U.S. citizens (38 percent). Virtually no Koreans became LPRs in 2015 via the Diversity Visa Lottery or as refugees.
Unauthorized Immigrants
Notes: Family-sponsored: Includes adult children and siblings of U.S. citizens as well as spouses and children of green-card holders. Immediate relatives of U.S. citizens: Includes spouses, minor children, and parents of U.S. citizens. Diversity Visa Lottery: The Immigration Act of 1990 established the Diversity Visa Lottery to allow entry to immigrants from countries with low rates of immigration to the United States. The law states that 55,000 diversity visas are made available each fiscal year. Nationals of North Korea are eligible to apply for the diversity visa, but nationals of South Korea are not.
Source: MPI tabulation of data from Department of Homeland Security (DHS), 2015 Yearbook of Immigration Statistics (Washington, DC: DHS Office of Immigration Statistics, 2016), available online.

Approximately 198,000 Korean immigrants resided in the United States without authorization in the 2010-14 period, representing 2 percent of the total 11 million unauthorized population, according to MPI estimates.

Click here for an interactive data tool showing top states and counties of residence for unauthorized immigrants in the United States by country or region of origin.

Furthermore, as of 2016, an estimated 52,000 unauthorized youth from Korea were eligible for work authorization and relief from deportation through the Deferred Action for Childhood Arrivals (DACA) program, launched in 2012. At the end of September 2016, 7,693 South Korean unauthorized youth had applied for the program and a total of 7,069 petitions had been approved, according to the most recent data available from U.S. Citizenship and Immigration Services.
Health Coverage
Click here for two interactive data tools showing estimates of DACA-eligible unauthorized immigrant populations for top states and counties, and application rates by country of origin.
Figure 7. Health Insurance Coverage by Origin, 2015
In 2015, Korean immigrants were less likely to be uninsured (13 percent) than the overall immigrant population (22 percent). In terms of the source of coverage, Korean immigrants and the native born were covered by private health insurance at the same rate (69 percent), but Korean immigrants were less likely than both the native- and foreign-born populations to have public coverage (see Figure 7).
Diaspora
Note: The sum of shares by type of insurance is likely to be greater than 100 because people may have more than one type of insurance.
Source: MPI tabulation of data from the U.S. Census Bureau 2015 ACS.
Remittances
In addition to the 1 million immigrants born in Korea who now reside in the United States, an almost equal number (900,000) were born outside of Korea (including in the United States) but report Korean ancestry. Together, the two groups comprise the 1.9 million Korean diaspora in the United States, according to tabulations from the U.S. Census Bureau 2015 ACS.

Global remittances sent to South Korea via formal channels equaled $6.5 billion in 2015, down slightly from $6.6 billion in 2014, about 0.5 percent of the country's gross domestic product (GDP). Remittances received by the South Koreans have nearly tripled since 1990, according to data from the World Bank. In 2015, the United States was the top source of remittances sent to South Korea, sending $2.9 billion to the country.
Sources
V isit the Data Hub's collection of interactive remittances tools, which track remittances by inflow and outflow, between countries, and over time.

Department of Homeland Security (DHS), Office of Immigration Statistics. 2016. 2015 Yearbook of Immigration Statistics. Washington, DC: DHS Office of Immigration Statistics. Available online.

Gibson, Campbell J. and Kay Jung. 2006. Historical Census Statistics on the Foreign-born Population of the United States: 1850-2000. Working Paper no. 81, U.S. Census Bureau, Washington, DC, February 2006. Available online.

Institute of International Education (IIE). 2016. Open Doors Report on International Educational Exchange. Washington, DC: IIE. Available online.

U.S. Census Bureau. 2016. 2015 American Community Survey. American FactFinder. Available online.

---. 2010. 1850-2000 Decennial Census and 2000-2015 ACS. Accessed from Steven Ruggles, J. Trent Alexander, Katie Genadek, Ronald Goeken, Matthew B. Schroeder, and Matthew Sobek, Integrated Public Use Microdata Series: Version 5.0 [Machine-readable database]. Minneapolis: University of Minnesota, 2016. Available online.

U.S. Citizenship and Immigration Services (USCIS). 2016. Number of I-821D, Consideration of Deferred Action for Childhood Arrivals by Fiscal Year, Quarter, Intake, Biometrics and Case Status: 2012-2016 (September 30). Available online.

World Bank Prospects Group. 2016. Annual Remittances Data, April 2016 update. Available online.

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Jie Zong, Jeanne Batalova Jie Zong and Jeanne Batalova

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Approximately 1 million Korean immigrants (overwhelmingly from South Korea) lived in the United States in 2015, representing 2.4 percent of the U.S. immigrant population. While earlier waves consisted largely of unskilled laborers and their families, contemporary Korean immigration boasts high socioeconomic standing and Koreans are generally considered among the most successful immigrant groups.

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Number of Applicants on Waiting List in
Employment-based Preference Categories
As of Nov. 1, 2015 vs. As of Nov. 1, 2016 ~and~
Wait List Totals by Country

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E Visa Categories-Permanent Resident Alien

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E Visa Categories-Permanent Resident Alien

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Employment Third Preference (E3): Skilled Workers, Professionals, and Unskilled Workers (Other Workers)

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Overview

Every fiscal year (October 1 st - September 30 th), approximately 140,000 employment-based immigrant visas are made available to qualified applicants under the provisions of U.S. immigration law. Employment based immigrant visas are divided into five preference categories. Certain spouses and children may accompany or follow-to-join employment-based immigrants.

Every fiscal year (October 1 st - September 30 th), approximately 140,000 employment-based immigrant visas are made available to qualified applicants under the provisions of U.S. immigration law. Employment based immigrant visas are divided into five preference categories. Certain spouses and children may accompany or follow-to-join employment-based immigrants.

The First Steps toward an Immigrant Visa: Labor Certification and Filing a Petition

To be considered for an immigrant visa under some of the employment-based categories below, the applicant's prospective employer or agent must first obtain a labor certification approval from the Department of Labor. Once received (if required), the employer then files an Immigrant Petition for Alien Worker, Form I-140, with the U.S. Citizenship and Immigration Services (USCIS) for the appropriate employment-based preference category. (NOTE: Persons with extraordinary abilities in the Employment First preference category are able to file their own petitions.) When filing the Immigrant Petition for Alien Worker, Form I-140, see the detailed form instructions, as well as more detailed requirements information on the USCIS Permanent Workers webpage.

There are three sub-groups within this category:

Persons with extraordinary ability in the sciences, arts, education, business, or athletics. Applicants in this category must have extensive documentation showing sustained national or international acclaim and recognition in their fields of expertise. Such applicants do not have to have specific job offers, so long as they are entering the U.S. to continue work in the fields in which they have extraordinary ability. Such applicants can file their own Immigrant Petitions for Alien Worker, Form I-140, with the USCIS.

Outstanding professors and researchers with at least three years experience in teaching or research, who are recognized internationally. Applicants in this category must be coming to the U.S. to pursue tenure, tenure track teaching, or a comparable research position at a university or other institution of higher education. The prospective employer must provide a job offer and file an Immigrant Petition for Alien Worker, Form I-140, with the USCIS.

Multinational managers or executives who have been employed for at least one of the three preceding years by the overseas affiliate, parent, subsidiary, or branch of the U.S. employer. The applicant's employment outside of the U.S. must have been in a managerial or executive capacity, and the applicant must be coming to work in a managerial or executive capacity. The prospective employer must provide a job offer and file an Immigrant Petition for Alien Worker, Form I-140, with the USCIS.

Employment Second Preference (E2): Professionals Holding Advanced Degrees and Persons of Exceptional Ability

A Second Preference applicant must generally have a labor certification approved by the Department of Labor. A job offer is required and the U.S. employer must file an Immigrant Petition for Alien Worker, Form I-140, on behalf of the applicant. Applicants may apply for an exemption, known as a National Interest Waiver, from the job offer and labor certification if the exemption would be in the national interest. In this case, the applicant may self-petition by filing the Immigrant Petition for Alien Worker, Form I-140, along with evidence of the national interest. Professionals Holding Advanced Degrees and Persons of Exceptional Ability receive 28.6 percent of the yearly worldwide limit of employment-based immigrant visas, plus any unused visas from the Employment First Preference category.

There are two subgroups within this category:

Professionals holding an advanced degree (beyond a baccalaureate degree), or a baccalaureate degree and at least five years progressive experience in the profession.

Persons with exceptional ability in the sciences, arts, or business. Exceptional ability means having a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.

Employment Third Preference (E3): Skilled Workers, Professionals, and Unskilled Workers (Other Workers)

A Third Preference applicant must have an approved Immigrant Petition for Alien Worker, Form I-140, filed by the prospective employer. All such workers generally require labor certification approved by the Department of Labor. Skilled Workers, Professionals, and Unskilled Workers (Other Workers) receive 28.6 percent of the yearly worldwide limit of employment-based immigrant visas, plus any unused visas from the Employment First Preference and Second Preference categories.

There are three subgroups within this category:

Skilled workers are persons whose jobs require a minimum of 2 years training or work experience that are not temporary or seasonal.

Professionals are members of the professions whose jobs require at least a baccalaureate degree from a U.S. university or college or its foreign equivalent degree.

Unskilled workers (Other workers) are persons capable of filling positions that require less than two years training or experience that are not temporary or seasonal.

Employment Fourth Preference (E4): Certain Special Immigrants

A Fourth Preference applicant must be the beneficiary of an approved Petition for Amerasian, Widow(er), or Special Immigrant, Form I-360, with the exception of Certain Employees or Former Employees of the U.S. Government Abroad (see number 3 below). Labor certification is not required for any of the Certain Special Immigrants subgroups. Special Immigrants receive 7.1 percent of the yearly worldwide limit of employment-based immigrant visas.

There are many subgroups within this category:

Broadcasters in the U.S. employed by the International Broadcasting Bureau of the Broadcasting Board of Governors or a grantee of such organization

Certain Employees or Former Employees of the U.S. Government Abroad - Must use Form DS-1884, Petition To Classify Special Immigrant Under INA 203(b)(4) As An Employee Or Former Employee of the U.S. Government Abroad

Certain Former Employees of the Panama Canal Company or Canal Zone Government

Certain Former Employees of the U.S. Government in the Panama Canal Zone

Certain Former Employees of the Panama Canal Company or Canal Zone Government on April 1st, 1979

Iraqi and Afghan interpreters/translators who have worked directly with the United States armed forces or under Chief of Mission authority as a translator/interpreter for a period of at least 12 months and meet requirements. This classification has an annual numeric limitation of 50 visas. See Special Immigrant Visas for Iraqi and Afghan Translators/Interpreters for more information.

Iraqi and Afghan nationals who have provided faithful and valuable service while employed by or on behalf of the U.S. government in Iraq for not less than one year on or after March 20th, 2003 and prior to September 30, 2013, or in Afghanistan for not less than one year after October 7th, 2001, and have experienced an ongoing serious threat as a consequence of that employment. See Special Immigrant Visas for Iraqis - Worked for/on behalf of the U.S. Government and Afghans - Worked for/on behalf of the U.S. Government for more information.

Certain Foreign Medical Graduates (Adjustments Only)

Certain Retired International Organization Employees

Certain Unmarried Sons and Daughters of International Organization Employees

Certain Surviving Spouses of deceased International Organization Employees

Special Immigrant Juveniles (no family member derivatives; Adjustments Only)

Persons Recruited Outside of the United States Who Have Served or are Enlisted to Serve in the U.S. Armed Forces

Certain retired NATO-6 civilians

Certain Unmarried Sons and Daughters of NATO-6 civilians

Certain Surviving Spouses of deceased NATO-6 civilian employees

Persons who are beneficiaries of petitions or labor certification applications filed prior to September 11th, 2001, if the petition or application was rendered void due to a terrorist act on September 11th, 2001

Certain Religious Workers

Employment Fifth Preference (E5): Immigrant Investors

Immigrant Investor visa categories are for capital investment by foreign investors in new commercial enterprises in the United States which provide job creation. Select Immigrant Investor Visas to learn more about this employment-based category.

Next Steps - Fees and Visa Application

After USCIS approves the petition, it is sent to the National Visa Center (NVC). Once received, the NVC will assign a case number for the petition. When an applicant's priority date meets the most recent qualifying date, the NVC will instruct the applicant to complete Form DS-261, Choice of Address and Agent. (NOTE: If you already have an attorney, the NVC will not instruct you to complete Form DS-261.) The NVC will begin pre-processing the applicant's case by providing the applicant with instructions to submit the appropriate fees. After the appropriate fees are paid, the NVC will request that the applicant submit the necessary immigrant visa documents, including application forms, civil documents, and more. Learn more about National Visa Center visa case processing.

Can My Family Members also Receive Immigrant Visas?

Based on your approved petition, your spouse and minor unmarried children, younger than 21, may apply for immigrant visas with you. Like you, they must also fill out required application forms, obtain required civil documents, pay the required fees, and undergo medical examinations. Same-sex spouses of U.S. citizens and Lawful Permanent Residents (LPRs), along with their minor children, are now eligible for the same immigration benefits as opposite-sex spouses. Consular officers at U.S. Embassies and Consulates will adjudicate their immigrant visa applications upon receipt of an approved I-130 or I-140 petition from USCIS. For further information, please see our FAQ's.

Numerical Limitations

All categories of employment-based immigrant visas are issued in the chronological order in which the petitions were filed until the annual numerical limit for the category is reached. The filing date of a petition becomes the applicant's priority date. Immigrant visas cannot be issued until an applicant's priority date is reached. In certain heavily oversubscribed categories, there may be a waiting period of several years before a priority date is reached. Check the Visa Bulletin for the latest priority dates.

Fees

Fees are charged for the following services:

Filing of Immigrant Petition for Alien Worker, Form I-140, or Petition for Amerasian, Widow(er), or Special Immigrant, Form I-360 (this fee is charged by USCIS)

Processing an immigrant visa application, Form DS-260 (see Note below)

Medical examination and required vaccinations (costs vary)

Other costs may include: translations; photocopying charges; fees for obtaining the documents you need for the immigrant visa application (such as passport, police certificates, birth certificates, etc.); and expenses for travel to the U.S. Embassy or Consulate for your visa interview. Costs vary from country to country and case to case.

For current fees for Department of State services, see Fees for Visa Services. For current fees for USCIS services, see Check Filing Fees on the USCIS website.

Note: Fees must be paid for each intending immigrant, regardless of age, and are not refundable.

Fees should not be paid to the NVC or paid at the U.S. Embassy or Consulate where you have your visa interview unless specifically requested. Applicants will be provided with instructions by the NVC on where and when to pay the appropriate fees. Do not send payments to the NVC's address in Portsmouth, New Hampshire.

Required Documentation

In general, the following documents are required:

Passport(s) valid for six months beyond the intended date of entry into the United States, unless longer validity is specifically requested by the U.S. Embassy/Consulate in your country. Please review the instructions for guidance.

Form DS-260, Immigrant Visa and Alien Registration Application.
Preview a sample DS-260 (6.4MB).

Two (2) 2x2 photographs. See the required photo format explained in Photograph Requirements.

Civil Documents for the applicant. See Documents the Applicant Must Submit for more specific information about documentation requirements, including information on which documents may need to be translated. The consular officer may ask for more information during your visa interview. Bring your original civil documents (or certified copies) such as birth and marriage certificates, as well as legible photocopies of the original civil documents, and any required translations to your immigrant visa interview. Original documents and translations can then be returned to you.

Financial Support - At your immigrant visa interview, you must demonstrate to the consular officer that you will not become a public charge in the United States. (NOTE: For applicants where a U.S. citizen or lawful permanent resident (LPR) relative filed the Form I-140 petition or where such a relative has a significant ownership interest in the entity that filed the petition, that relative must complete Form I-864, Affidavit of Support Under Section 213A of the Act, on behalf of the applicant.)

Completed Medical Examination Forms - These are provided by the panel physician after you have completed your medical examination and vaccinations (see below).

Visa Interview

Once the NVC determines the file is complete with all the required documents, they schedule the applicant's interview appointment. NVC then sends the file, containing the applicant's petition and the documents listed above, to the U.S. Embassy or Consulate where the applicant will be interviewed for a visa. The applicant, attorney, and third-party agent, if applicable, will receive appointment emails, or letters (if no email address is available), containing the date and time of the applicant's visa interview along with instructions, including guidance for obtaining a medical examination.

Each applicant should bring a valid passport to the interview, as well as any other documentation above not already provided to NVC. A consular officer will interview the applicant, and the consular officer will determine whether the applicant is eligible to receive an immigrant visa in accordance with U.S. immigration law. Ink-free, digital fingerprint scans will be taken on the day of the interview. Generally, an applicant receives original civil documents and original translations back at the time of interview.

Medical Examinations and Vaccinations

Important Notice: In preparing for your interview, you will need to schedule and complete your medical examination and any required vaccinations before your visa interview. Before an immigrant visa can be issued, every applicant, regardless of age, must undergo a medical examination which must be performed by an authorized panel physician. NVC provides applicants instructions regarding medical examinations, including information on authorized panel physicians. See Medical Examination for more information, including a list of panel physicians by country, and frequently asked questions.

Misrepresentation of Material Facts or Fraud

Attempting to obtain a visa by the willful misrepresentation of a material fact or fraud may result in you becoming permanently ineligible to receive a U.S. visa or enter the United States.

When You Have Your Immigrant Visa - What You Should Know

If you are issued an immigrant visa, the consular officer will give you your passport containing the immigrant visa and a sealed packet containing the documents which you provided. It is important that you do not open the sealed packet. Only the U.S. immigration official should open this packet when you enter the United States. You are required to enter the United Statesbefore the expiration date printed on your visa. When traveling, the primary (or principal) applicant must enter the United States before or at the same time as family members holding visas.

USCIS Immigrant Fee - You must pay the USCIS Immigrant Fee to U.S. Citizenship and Immigration Services (USCIS) after you receive your immigrant visa and before you travel to the United States. (SI-1, SI-2, SI-3, SQ-1, SQ-2, and SQ-3 visa holders will not pay the fee.) Select USCIS Immigrant Fee on the USCIS website for more information.

Important Notice: USCIS will not issue a Permanent Resident Card (Form I-551 or Green Card) until you have paid the fee.

Entering the United States: Port-of-Entry

A visa allows a foreign citizen to travel to the U.S. port-of-entry and request permission to enter the United States. Applicants should be aware that a visa does not guarantee entry into the United States. The DHS, U.S. Customs and Border Protection (CBP) officials have authority to permit or deny admission to the United States. Travelers should review important information about admissions and entry requirements on the CBP website under Travel.

Once you have paid the USCIS immigrant fee and have been admitted to the U.S. as a permanent resident, your Permanent Resident Card, Form I-551 (formerly called Alien Registration Card, also known as a (green card) will be mailed to you.

General Visa Questions

Before submitting your inquiry, we request that you carefully review this website for answers to your questions. Because of the volume of inquiries, we cannot promise an immediate reply to your inquiry.

If your inquiry concerns a visa case in progress overseas, you should first contact the U.S. Embassy or Consulate handling your case for status information. Select U.S. Embassy or Consulate to find contact information.

You can find contact information for our Public Inquiries Division at Contact Us.

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Every fiscal year (October 1 st - September 30 th), approximately 140,000 employment-based immigrant visas are made available to qualified applicants under the provisions of U.S. immigration law. Employment based immigrant visas are divided into five preference categories. Certain spouses and children may accompany or follow-to-join employment-based immigrants.

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I-140, Immigrant Petition for Alien Worker

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Number of Pages

Form 9; instructions 11.

Edition Date

05/09/18. You can find the edition date at the bottom of the page on the form and instructions.

Where to File

The filing address depends on whether you are filing Form I-140 by itself or with another form. Check the Direct Filing Addresses for Form I-140 for instructions on where to mail your form. Please read our filing tips if you file at a Lockbox.
Filing Tips for Form I-140, Immigrant Petition for Alien Worker

Part 1 - Information About the Person or Organization Filing This Petition

Family Name OR Company or Organization Name

IRS Tax Number or Social Security number (does not apply to Part 2. Petition Type 1.a., alien of extraordinary ability or 1.i., National Interest Waiver)

Mailing Address

Part 2 - Petition Type

Part 3 - Information About the Person for Whom You Are Filing

Don't forget to sign your form! We will reject any unsigned form.
Complete all sections of the form. We will reject the form if these fields are missing:

Filing Fee

$700. You may pay the fee with a money order, personal check, or cashier's check. When filing at a USCIS Lockbox facility, you may also pay by credit card using Form G-1450, Authorization for Credit Card Transactions. If you pay by check, you must make your check payable to the U.S. Department of Homeland Security. Please note that service centers are not able to process credit card payments.

Checklist of Required Initial Evidence (for informational purposes only)

View the checklist of required initial evidence.

Special Instructions

Related Links

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Form 9; instructions 11. 05/09/18. You can find the edition date at the bottom of the page on the form and instructions. The filing address depends on whether you are filing Form I-140 by itself or with another form. Check the Direct Filing Addresses for Form I-140 for instructions on where to mail your form.

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Wages, Discrepancies, and Gaps - Taking Advantage AND Industry Stats!

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Summary

The Essential Worker Immigration Coalition (EWIC)-a lobbying group representing the interests of employers-claims that it is "concerned with the shortage of both semi-skilled and unskilled ('essential worker') labor" and thus "supports policies that facilitate the employment of essential workers by U.S. companies that are unable to find American workers." Representatives of other influential corporate lobbying groups, including the U.S. Chamber of Commerce and ImmigrationWorks USA, have made similar claims.

These groups are advocating to deregulate and expand the H-2B temporary foreign worker program, which permits U.S. employers to temporarily hire workers from abroad with H-2B nonimmigrant visas for lower- and semi-skilled occupations that are non-agricultural and seasonal in nature. And, claiming that "many American businesses could not function without the H-2B program" the Chamber and ImmigrationWorks USA want Congress to create a new and much larger program that would permit them to hire lower- and semiskilled guestworkers for year-round jobs.

While Congress debates whether to expand existing temporary foreign worker programs and whether to create a larger new program, it should note the lack of credible evidence that there are labor shortages in lesser-skilled jobs. This report does not attempt to establish whether labor shortages exist in H-2B occupations, but instead looks at employment growth, wages, and unemployment rates in the main occupations of H-2B workers. Following are the main findings of the report.
1. Despite above-average employment growth in some of the top H-2B occupations, the fact that wages have been stagnant or declining, combined with persistently high unemployment rates, suggests that there are no labor shortages at the national level in the top H-2B occupations.
Specifically, looking at the top 15 H-2B occupations (the occupations with the largest numbers of certifications) in fiscal year 2014 and assessing how they changed from 2004 to 2014, we see that:

There was no significant wage growth; in fact, wages were stagnant or declining for workers in all of the top 15 H-2B occupations.

Seven of the top 15 occupations experienced employment growth that exceeded the overall growth of 5.5 percent for all occupations, two experienced employment growth that was less than the overall growth for all occupations, and six contracted.

In the three fastest-growing occupations of Nonfarm Animal Caretakers (up 99.5 percent), Coaches and Scouts (up 72.3 percent), and Cooks in Restaurants (up 44.3 percent), wages declined over the same ten-year period.

Unemployment rates increased in all but one of the top 15 H-2B occupations, and all 15 occupations had very high average unemployment rates in 2013-2014 (the most recent data available). In 11 of the top 15 H-2B occupations, unemployment dropped from 2004-2005 to 2006-2007, but then rose significantly between 2006-2007 and 2013-2014. Such high unemployment rates suggest a loose labor market in the top 15 H-2B occupations.

2. While a change in prevailing wage rules in the middle of 2013 (known as the 2013 Interim Final Rule or IFR) may have helped fuel a slight increase in the wages that H-2B jobs were certified at by the U.S. Department of Labor, H-2B wage rules continue to allow hourly wage rates that are far lower than state and national averages in the overwhelming majority of cases.
As a result, employers save multiple dollars an hour per worker by hiring a lower-paid H-2B worker instead of a U.S. worker earning the local average wage for the occupation. This suggests that despite the rule change, the wage rates employers are required to pay H-2B workers are not high enough to attract U.S. workers and thus not high enough to ensure compliance with the Immigration and Nationality Act's statutory requirement that an H-2B worker not be hired unless "unemployed persons capable of performing such service or labor cannot be found in this country." (The 2013 rule requires employers to pay the local average wage unless a collective bargaining agreement is applicable, or unless the U.S. Department of Labor approves the use of a wage survey that it did not conduct.)

Specifically, the report calculates the difference between the H-2B wage certified by the U.S. Department of Labor and the average national or state wage from DOL's Occupational Employment Statistics (OES) wage survey data. In most cases this difference represents how much employers can save on their wage bill, on average, by hiring an H-2B worker instead of a U.S. worker earning the local average wage for the occupation. This report finds that for the top 15 H-2B occupations in fiscal years 2012, 2013, and 2014:

Except for six instances out of 45, nationwide, on average, H-2Bs were certified at a wage that was below the national OES average wage.

In the top H-2B occupation, of Landscaping and Groundskeeping Workers, employers saved on average between $2.59 and $3.37 per hour by hiring an H-2B worker instead of a worker earning the national average wage for the occupation.

In the second-largest H-2B occupation, Forest and Conservation Workers, employers saved on average between $3.27 and $3.80 per hour by hiring an H-2B worker instead of a worker earning the national average wage for the occupation.

Comparing the average hourly certified H-2B wage for an occupation in a particular state with the average hourly wage for the occupation in the state yields similar results, with the share of all top 15 H-2B certifications that were in occupations where the average certified H-2B wage exceeded the state OES average rising but still low: from 1.2 percent in fiscal 2012 to 3.5 percent in fiscal 2013, to 9 percent in fiscal 2014.

3. Soon after the 2013 Interim Final Rule came into effect, H-2B employers shifted en masse to the use of private wage surveys-and evidence revealed in federal litigation clearly suggests that the shift to the use of private wage surveys was a systematic response by H-2B employers to keep H-2B wages lower than the average OES wage rate that would otherwise be required under the 2013 Interim Final Rule.
Specifically, in the nine months between July 1, 2013, and March 31, 2014, employers increased their submissions of private wage surveys for H-2B prevailing wage determinations by 3,182 percent, as compared with the 12 months leading up to the federal court decision that invalidated the previous H-2B wage rule. In 21.1 percent of those determinations, the certified H-2B wage was lower than the Level 1 H-2B prevailing wage, which is the 17th percentile wage by occupation and local area (according to U.S. Department of Labor OES wage survey data), and 94.4 percent of the determinations were for a wage that was lower than the Level 2 (34th percentile) wage (whereas the Level 3 wage is generally considered the local average wage, or roughly the 50th percentile wage).

Introduction/background

The Essential Worker Immigration Coalition (EWIC)-a lobbying group representing the interests of employers-claims that it is "concerned with the shortage of both semiskilled and unskilled ("essential worker") labor" and thus "supports policies that facilitate the employment of essential workers by U.S. companies that are unable to find American workers" (EWIC 2015). Representatives of other influential corporate lobbying groups, including the U.S. Chamber of Commerce and ImmigrationWorks USA, have made similar claims.

The main policy solution these groups advocate is the deregulation and expansion of the H-2B temporary foreign worker program (also often referred to as a "guestworker" program), which permits U.S. employers to temporarily hire workers from abroad with H-2B nonimmigrant visas for lower- and semi-skilled occupations that are non-agricultural and seasonal in nature.

In 2010, the U.S. Chamber and ImmigrationWorks USA published a joint report touting the economic benefits of the H-2B program. In the foreword to the report they claim that "many American businesses could not function without the H-2B program" (U.S. Chamber and ImmigrationWorks USA 2010). Yet the report cites a survey showing that H-2B employers believe "the annual cap of 66,000 H-2B visas is too low to meet business needs" and "the program is so complicated and difficult to apply for that it discourages many small businesses from using it" (U.S. Chamber and ImmigrationWorks USA 2010, 3). These employer groups have lobbied Congress to expand the H-2B program and have lobbied and litigated to prevent federal agencies from implementing additional regulations that would raise the minimum wages they must pay and provide more rights and protections to U.S. and foreign H-2B workers (Luban 2015). The employer groups have largely succeeded in these efforts, having blocked almost all of the Obama administration's proposed H-2B reforms from being implemented from 2011 to April 2015. 1

A second policy response advocated by the U.S. Chamber, ImmigrationWorks USA, and EWIC is the creation of a new and much larger temporary foreign worker program to fill year-round jobs in lower- and semi-skilled non-agricultural occupations. Unlike in the H-2B program, temporary foreign workers employed in the United States under the EWIC plan would be allowed to work year round instead of only seasonally, as well as to switch to another job with a different employer under an employer registration protocol. Guestworkers in this program also would eventually be allowed to apply for permanent residence if they met certain requirements. Under the EWIC plan, the new temporary foreign worker program would have an annual numerical limit that starts "at 400,000 a year to keep up with demand" (EWIC 2007).

On more than one occasion, a program resembling the EWIC proposal has been seriously considered by Congress. In May 2005, a bill authored by Senators Edward Kennedy and John McCain that would have comprehensively reformed the U.S. immigration system, included provisions that would have created a new temporary foreign worker program with an initial annual limit of 400,000 that could be adjusted upward after the first year in response to employer demand. 2 More recently, in the context of spring 2013 Senate negotiations to craft comprehensive immigration reform legislation, representatives of the U.S. Chamber and the AFL-CIO (the nation's largest trade union federation) agreed to a legislative proposal to create a new, year-round temporary foreign worker program for non-agricultural lower-skilled occupations (Parker and Greenhouse 2013). 3 The agreed-upon framework became part of the Border Security, Economic Opportunity, and Immigration Modernization Act (also known by its bill number, S. 744), which passed the Senate on June 27, 2013, by a vote of 68 to 32 (Silverleib 2013). If S. 744 had become law, a new temporary foreign worker program known as the "W-1" visa program would have eventually permitted employers to hire a maximum of 200,000 additional guestworkers per year.

While Congress continues to debate whether to expand existing temporary foreign worker programs and whether to create a much larger new program for employers who claim there are labor shortages in lower- and semi-skilled occupations, there is no credible evidence that such labor shortages exist. In fact, little has been written regarding the current state of the most common H-2B occupations, in terms of employment levels, wages, and unemployment rates. Other than employer anecdotes, no credible data or labor market metrics have been presented by non-employer-affiliated groups or organizations-let alone by disinterested academics-proving the existence of labor shortages that could justify a large expansion of non-agricultural lower- and semi-skilled temporary foreign worker programs. This report collects and assesses the available evidence on employment, wages, and unemployment rates in the top 15 certified H-2B occupations in fiscal 2014, for the 2004-2014 period. This report does not, however, attempt to conduct a detailed national, regional, or local labor shortage analysis or make a determination about the existence of shortages in particular H-2B occupations.

This report reviews the average wages certified nationwide in the top 15 H-2B occupations in fiscal years 2012, 2013, and 2014, and compares them with the average wages nationwide for each occupation and with the average wage in each state where an H-2B job was certified. The report also explains the different prevailing wage rules in place during the different fiscal years, and explores how they may have affected the results. Specifically, the report calculates the difference between the H-2B wage certified by the U.S. Department of Labor and the average national or state wage, and this gap in most cases represents how much employers can save on their wage bill, on average, by hiring an H-2B worker instead of a U.S. worker earning the local average wage for the occupation. The impact of employer-submitted private wage surveys (i.e., wage surveys that were not conducted by the U.S. Department of Labor) on determining H-2B prevailing wages is also assessed.

Data and methodology

Data presented on H-2B occupations are from the labor certification data sets provided annually and made publicly available by the Office of Foreign Labor Certification (OFLC), U.S. Department of Labor (DOL) (OFLC 2015). Filing for a labor certification is the first step in the process that an employer must complete if he or she wishes to hire an H-2B worker. Basically, the employer identifies a job he or she wants to fill with an H-2B visa holder and specifies the wage that the future H-2B visa beneficiary will earn if hired; the specified wage is also the wage the employer must promise to pay in advertisements targeting U.S. workers before the employer may hire an H-2B worker from abroad. The DOL reviews the request to make sure that the wage matches the correct wage rate for the job in its own database, unless a wage is set for the job through a collective bargaining agreement (in that case, the wage specified in the agreement is the H-2B wage), or is otherwise justified by a private survey submitted by the employer and approved by DOL. 4

In the available H-2B data, requests for labor certification from employers are either labeled as certified, partially certified (meaning some fraction of the total number of the workers requested is certified, while the rest are denied), or denied (entirely) by DOL. Some records in the data may also be labeled as "certification expired" or "partial certification expired" (however not every year of DOL data on H-2B includes records labeled as certification expired or partial certification expired). H-2B labor requests that are certified may then be sent by employers to the United States Citizenship and Immigration Services (USCIS), which is part of the Department of Homeland Security (DHS), for review. USCIS may approve or deny the H-2B petition submitted by the employer. H-2B petitions that are approved by USCIS are then forwarded to the U.S. Department of State (DOS), which determines whether or not to issue an H-2B visa to an individual foreign worker after a consular interview, unless the H-2B worker is already in the United States in another immigration status (in that case, USCIS can adjust the worker's status to H-2B).

These requests populate the DOL database, which is able to provide data on the pledged wages attached to each request for labor certification-the hourly wage rates contained in the requests that were certified but not yet approved by USCIS are referred to in this report as the certified H-2B wage. It is important to note that the number of certified H-2B labor requests is not the same as the final number of H-2B visas issued in a fiscal year (which are tallied by DOS) (Bureau of Consular Affairs 2015) or the number of H-2B "admissions," i.e., persons crossing through a port of entry into the United States with a valid H-2B visa (which are tallied by DHS) (Monger 2013).

Because some of the requests for labor that DOL certifies do not result in an H-2B visa for a worker, the number of labor certifications is always higher than the number of petitions approved by USCIS and the eventual number of visas issued by DOS. For example, in fiscal 2013, DOL certified 82,307 requests for H-2B workers, of those USCIS approved 79,219 workers, and DOS issued 57,600 H-2B visas. (U.S. law also specifies that the number of H-2B visas issued in a fiscal year may not exceed 66,000 5-this is commonly referred to as the annual H-2B "cap"-however certain exemptions 6 may allow the total number to be higher than 66,000 in a given fiscal year.) This is a limitation inherent in H-2B data because DOS does not publish any data on the employers who received H-2B visas, the occupations of the H-2B workers, or the wages employers have promised to pay the H-2B workers issued visas by DOS. H-2B data from approved USCIS H-2B petitions that are disaggregated by Standard Occupational Classification code (SOC) and listing wages promised to be paid to H-2B workers would not be as reliable as DOS visa data, but would be preferable to DOL labor certification data because they would reveal a narrower subset of employers likely to eventually get an H-2B visa. Unfortunately, USCIS does not publish those data either. USCIS only publishes the total number of H-2B petitions it has approved, along with other limited information found in a report to Congress that it is required by law to publish every year (USCIS 2015). The total number of H-2B petitions USCIS approved for fiscal years 2009 to 2013 was also published in a March 2015 report by the United States Government Accountability Office (GAO 2015, 21).

The same GAO report criticized USCIS's data collection, noting that while DOL uses modern SOC codes for classifying H-2B occupations, USCIS then converts those 840 occupations used by DOL to a different classification system that has a much smaller and broader subset of 83 detailed occupations (GAO 2015, 22). Data on wages to be paid by H-2B employers are collected by USCIS on the Form I-129 petition, but because they are not stored in electronic format (the data are stored in paper files), they are inaccessible to the government's own auditors, or to the public, even with the use of a Freedom of Information Act request. As a result, DOL labor certification data are the most accurate and reliable public source of information for examining the occupations, work locations, and wages of H-2B workers.

The H-2B data used in this report exclude all H-2B labor certification records labeled as "denied," "certification expired," and "partial certification expired," because denied and expired records were not likely to become approved USCIS H-2B petitions or visas issued by the State Department. As a result, there may be a discrepancy between the total number of H-2B certifications listed in this report for fiscal 2012, 2013, and 2014 and the total number of certifications found in the raw data sets published by DOL online, as well as on DOL's annual "Selected Statistics" fact sheets, 7 which report all certification records, including those listed as expired. This may also result in lower totals by occupation in this report than are reported by DOL in the Selected Statistics fact sheets.

The data on the wages of all workers in an occupation for the entire United States or by state comes from the Bureau of Labor Statistics' Occupational Employment Statistics (OES) survey data (BLS 2015). These data are appropriate for comparing with certified average H-2B wages because most certified H-2B wages are based on OES wage data reported in the Online Wage Library at the Foreign Labor Certification Data Center, and these OES wage data correspond to the SOC codes for the jobs. The wages reported in the Online Wage Library are based on OES survey data for nearly every occupation (by SOC code) and region in the United States, therefore comparing certified H-2B wages with OES wages is comparing apples to apples in the vast majority of cases. 8

When calculating occupational unemployment rates, the SOC codes do not correspond perfectly with the occupational codes used in the Current Population Survey (CPS) monthly household survey microdata, published jointly by the U.S. Census and the Bureau of Labor Statistics. CPS microdata are needed to calculate the unemployment rates for the top H-2B occupations. However, the H-2B occupations with the 15 largest numbers of certifications in fiscal 2014 match up reasonably well with the same or similar occupations found in the CPS data using the government's crosswalks between the occupations, even though the occupational titles may differ slightly.

Top 15 H-2B occupations in FY2014

Table 1 shows the 15 occupations with the largest number of approved labor certifications for H-2B workers in fiscal 2014, for the entire United States. The top 15 occupations account for 67,978 labor certifications out of 83,843 total certifications, 81 percent of all labor certifications in fiscal 2014. The largest occupation by far is Landscaping and Groundskeeping Workers, with 34,159 workers certified, making up 40.7 percent of all H-2B labor certifications in fiscal 2014. The second largest occupation is Forest and Conservation Workers, with 6,753 certifications (8 percent of the total). Together, the top two H-2B occupations accounted for nearly half of all H-2B certifications (48.8 percent). The third and fourth largest H-2B occupations were Maids and Housekeeping Cleaners and Amusement and Recreation Attendants, each of which accounted for approximately 6 percent of all H-2B certifications. The fifth-largest H-2B occupation, Meat, Poultry, and Fish Cutters and Trimmers, made up 3.5 percent of all H-2B certifications and the sixth-largest, Construction Laborers, accounted for 2.9 percent. The rest of the top 15 H-2B occupations in fiscal 2014 are listed in Table 1.

Lower-skill and low-wage occupations in the United States

According to the Organization for Economic Cooperation and Development (OECD), 25 percent of all jobs in the United States are "low-wage" jobs (defined as earning less than two-thirds of the national median hourly wage); the largest share of low-wage jobs among all OECD countries (Schmitt 2012, 1). (The United Kingdom has the next highest share at 21 percent, and Belgium has the lowest, with 4 percent.)

In 2013, 27.5 percent of all workers in the United States were earning "poverty-level" wages; this share has increased by 2.4 percentage points since 2000 (EPI 2013). 9 From 2000 to 2012, the bottom 60 percent of wage earners in the United States on average experienced negative or zero real wage growth (Shierholz and Mishel 2013), and from 2000 to 2014, the median income for non-elderly households fell 12.3 percent (Mishel and Davis 2015). Even the most educated workers have not seen their wages rise since 2007; in fact, workers at all education levels have experienced stagnant or declining wages since 2007 (Gould 2015). Despite these dire statistics, low-wage occupations have been growing faster than middle-income or high-paying occupations since the end of the financial crisis of 2007-2009 (the "Great Recession"). According to the National Employment Law Project, low-wage occupations "constituted 21 percent of recession losses, but 58 percent of recovery growth" (NELP 2012). Many of the occupations that experienced high employment growth in 2014 (from BLS 2015a, Table 1.4), as well as the occupations projected to be the "fastest growing" between 2014 and 2024 (from BLS 2015b, Table 1.3) are in low-wage occupations that require little or no postsecondary education. While low-wage-earning workers in lower-skilled occupations in the United States are a significant share of the workforce and are in many cases employed in rapidly growing occupations, most have seen their wages stagnate or decline for many years.

Education/skills of workers in the top 15 H-2B occupations

Many of the top 15 H-2B occupations require minimal or no education and training. The Occupational Information Network (O*NET), which is developed and maintained by U.S. Department of Labor's Employment and Training Administration (ETA), provides detailed background information on each of these occupations. 10 O*NET assigns each occupation a "Job Zone" number which corresponds to "a group of occupations that are similar in: how much education people need to do the work; how much related experience people need to do the work; and how much on-the-job training people need to do the work." 11 The O*NET website has a brief descriptor of each Job Zone:

Job Zone 1 - occupations that need little or no preparation

Job Zone 2 - occupations that need some preparation

Job Zone 3 - occupations that need medium preparation

Job Zone 4 - occupations that need considerable preparation

Job Zone 5 - occupations that need extensive preparation

Of the 15 top H-2B occupations, nine are in O*NET Job Zone 1 (60 percent), four are in Zone 2 (26.6 percent), one is in Zone 3, and one is in Zone 4 ( Table 2). According to O*NET, Job Zone 1 occupations "may require a high school diploma or GED certificate" and have employees who need "little or no previous work-related skill, knowledge, or experience" and "anywhere from a few days to a few months of training." Job Zone 2 occupations "usually require a high school diploma" and have employees who usually need "[s]ome previous work-related skill, knowledge, or experience" and "anywhere from a few months to one year of working with experienced employees." The O*NET survey data on the education levels of all workers who are employed in the United States in the top 15 H-2B occupations show that the vast majority either possess a high school diploma or its equivalent (but no additional education), or have less than a high school diploma. Therefore, because 13 of the top 15 H-2B occupations require little education and training, it can safely be said that they are lower-skilled occupations. The two possible exceptions are: Coaches and Scouts, in which over a quarter (28 percent) of workers reported possessing an associate's degree, nearly half (47 percent) possess a bachelor's degree, and 15 percent possess a master's degree. The other is Nonfarm Animal Caretakers, in which 18 percent of workers reported possessing a bachelor's degree. However, a worker may have a bachelor's or master's degree even though the job the worker performs requires little or no education. For example, many jobs in these two occupations, such as grooming horses at a stable (Nonfarm Animal Caretakers) or coaching a community college softball team (Coaches and Scouts), are unlikely to require a bachelor's or master's degree in any field.

Employment change in the top 15 H-2B occupations, 2004-2014

Table 3 shows the U.S. employment levels in 2004 to 2014 for all occupations and for the top 15 H-2B occupations (by Standard Occupational Classification) in fiscal 2014. Table 4 shows the change in employment from 2004 to 2014 for all occupations in the United States, and for all workers in the United States who were employed in the occupations making up the top 15 H-2B occupations in FY 2014.

From 2004 to 2014, employment in all occupations grew 5.5 percent, averaging 0.5 percent per year. Over the same period, the top 15 H-2B occupations had widely varying rates of employment growth. Six experienced employment declines; seven experienced growth that was positive and above the 5.5 percent growth rate for all occupations; and two experienced growth that was lower than the percentage change for all occupations.

Amusement and Recreation Attendants, Coaches and Scouts, Waiters and Waitresses, Nonfarm Animal Caretakers, and Cooks, Restaurant, all grew by more than 10 percent from 2004 to 2014. Three occupations experienced employment growth far exceeding the overall growth of 5.5 percent for all occupations from 2004 to 2014: Nonfarm Animal Caretakers (99.5 percent), Coaches and Scouts (72.3 percent), and Cooks, Restaurant (44.3 percent). The three occupations with employment declines from 2004 to 2014 were Fishers and Related Fishing Workers (-57.4 percent); Forest and Conservation Workers (-24.8 percent), and Packers and Packagers, Hand (-20.5 percent). The top H-2B occupation in FY 2014, Landscaping and Groundskeeping Workers, grew by only 1.0 percent from 2004 to 2014 (an average of 0.1 percent per year).

Average hourly wages in top 15 H-2B occupations, 2004-2014

Table 5 shows the change in hourly wages for all workers in the United States and workers in the top 15 H-2B occupations from 2004 to 2014, adjusted to 2014 dollars. As the table shows, there was no significant wage growth for workers; wages were stagnant (growing less than 1 percent annually) or declined for workers in all of the top 15 H-2B occupations between 2004 and 2014.

For all workers in the United States in all occupations, wages rose by just $0.40 in real terms (adjusted to 2014 dollars), just 1.8 percent over the decade. For workers in 10 of the top 15 H-2B occupations, wages declined, between $0.13 and $0.93 in 2014 dollars. The five occupations that saw slight hourly wage increases were Forest and Conservation Workers (by $0.04, or 0.3 percent), Maids and Housekeeping Cleaners ($0.02, 0.2 percent), Waiters and Waitresses ($0.80, 8.3 percent), Fishers and Related Fishing Workers ($0.82, 4.7 percent), and Dining Room and Cafeteria Attendants and Bartender Helpers, ($0.54, 5.8 percent). While workers in these occupations experienced real wage growth between 2004 and 2014, it was insignificant; wages in each of the five occupations grew by much less than 1 percent per year. Nationwide, workers in the other 10 top H-2B occupations were actually worse off in 2014 than they were 10 years earlier.

Unemployment rates in top 15 H-2B occupations, 2004-2014

Unemployment rates in H-2B occupations are calculated from Current Population Survey basic monthly microdata, which are jointly maintained by the U.S. Census and the Bureau of Labor Statistics. These data are not classified by SOC code, but instead use Census codes. However, the H-2B occupations with the 15 largest numbers of certifications in fiscal 2014 match up reasonably well with the same or similar occupations found in the CPS data using the government's crosswalks between the occupations, even though the occupational titles may differ slightly in some cases.

Figure A shows the average unemployment rates in each of the occupations listed, for 2004-2005, 2006-2007, and 2013-2014. Two years of data were pooled together to increase sample sizes. The first two periods listed were chosen because they exclude the years of the recession that began in 2008 and its aftermath, and 2013-2014 was chosen because those years represented the most recent data available.

Figure A shows that the unemployment rate rose in all but one of the top 15 H-2B occupations between 2004 and 2014. The average unemployment rate of Helpers-Production Workers was 10.8 percent during 2004-2005 and ended up at 10.3 percent during 2013-2014. Although the unemployment rate in this occupation has declined since 2004, it has declined by only one-half of a percent, and remained very high in 2014.

The average annual unemployment rate for all workers in the United States in 2014 was 6.2 percent. During 2013-2014, none of the 15 H-2B occupations was at or below the overall U.S. unemployment rate for 2014. Three occupations-Nonfarm Animal Caretakers; Athletes, Coaches, Umpires, and Related Workers; and Butchers and Other Meat, Poultry, and Fish Processing Workers, had an unemployment rate that was roughly about one percentage point higher than the national unemployment rate, while the other 12 occupations had much higher unemployment rates. Nine of the occupations had unemployment rates 10 percent or higher in 2013-2014, with the highest being Construction Laborers at 14.7 percent. Grounds Maintenance Workers, which corresponds to Landscaping and Groundskeeping Workers (SOC code 37-3011), the top H-2B occupation by far, had an average unemployment rate of 12.7 percent during 2013-2014, more than double the national unemployment rate.

Are there labor shortages at the national level among the top 15 H-2B occupations?

The claim by the Essential Worker Immigration Coalition that it is "concerned with the shortage of both semi-skilled and unskilled ('essential worker') labor" begs the question of whether there is any evidence that semiskilled and unskilled labor are in short supply. And since EWIC and other employer groups look to the H-2B visa as the remedy for labor shortages, it is reasonable to think about this in the context of the top H-2B occupations. However, it should be noted at the outset that determining whether a labor shortage exists in a particular occupation can be a difficult and inexact science. Numerous books and articles have been written on how to determine the existence of a shortage. 13 While the definitions vary, the governments of various developed countries maintain and regularly update shortage occupation lists based on quantitative and qualitative labor market data and analysis. 14 They rely on these analyses when crafting legislation and policy related to the workforce, the labor market, and immigration.

How to define and determine a labor shortage

A detailed explanation of how to conduct a labor shortage analysis is beyond the scope of this report. As mentioned, a substantial body of literature already exists on the subject, and in fact, this report will not conduct a detailed shortage analysis or make a determination about the existence of shortages in H-2B occupations. Exact methodologies for determining labor shortages may vary, and a discussion about their relative efficacy is also beyond the scope of this report. There are, however, basic definitions that many labor market economists can agree on. A good example is the simple definition offered by economists Philip Martin from the University of California, Davis, and Martin Ruhs from Oxford University, who have summarized the three essential elements required to establish a shortage (Martin and Ruhs 2011). Martin and Ruhs assert that industries and occupations reporting labor shortages should have (1) rising real wages relative to other occupations, (2) faster-than-average employment growth, and (3) relatively low and declining unemployment rates. 15 The preceding sections of this report provide the available evidence relating to these three factors.
(1) Are real wages in top 15 H-2B occupations rising relative to other occupations?
Real wages are rising in only three of the top 15 H-2B occupations, and this rise is not significant. According to OES data, wages across all occupations stagnated in the United States between 2004 and 2014, rising only $0.40 in real terms (2014 dollars), 1.8 percent for all occupations. And as Table 5 shows, the story was mostly similar or worse in the top 15 H-2B occupations, where wages declined in real terms in 10 of the top 15 occupations. While wages increased in real terms in five of the top 15 occupations, the increases were insignificant: less than $1 in all cases, and less than a nickel in two of the occupations. In three occupations (Waiters and Waitresses, Fishers and Related Fishing Workers, and Dining Room and Cafeteria Attendants and Bartender Helpers) wages did rise faster than they did for all occupations, but rose at far less than even 1 percent per year.
(2) Is there faster-than-average employment growth in top 15 H-2B occupations?
There is faster-than-average employment growth in less than half of the occupations. As Tables 3 and 4 show, from 2004 to 2014, seven of the top 15 occupations experienced employment growth that exceeded the 5.5 percent increase for all occupations, six experienced declines; and two experienced growth lower than the rate for all occupations. Three occupations experienced employment growth far exceeding the overall growth of 5.5 percent for all occupations from 2004 to 2014: Nonfarm Animal Caretakers (99.5 percent), Coaches and Scouts (72.3 percent), and Cooks, Restaurant (44.3 percent); however, wages in these three fastest-growing occupations declined over the same 10-year period.
(3) Do the top H-2B occupations have relatively low and declining unemployment rates?
Rather than declining, unemployment rates increased in all but one of the top 15 H-2B occupations between 2004-2005 and 2013-2014, and all averaged very high unemployment rates in 2013-2014. The unemployment rate declined in one occupation, Helpers-Production Workers, which had an average unemployment rate of 10.8 percent during 2004-2005 and 10.3 percent during 2013-2014. Although the unemployment rate in this occupation declined by half a percentage point between 2004-2005 and 2013-2014, the unemployment rate remained very high in 2013-2014. In 11 of the top 15 H-2B occupations, the unemployment rate dropped from 2004-2005 to 2006-2007, but then rose significantly between 2006-2007 and 2013-2014.

Such high unemployment rates suggest a loose labor market-an oversupply of workers rather than an undersupply-in the top 15 H-2B occupations. The unemployment rates presented in this report may underestimate how many workers cannot find work in the occupation because the official rates do not count workers who are no longer actively seeking employment in the occupation (either because they found a job in another occupation or because they gave up looking for work in the occupation).

Summing up the results of the three tests

While seven of the top 15 occupations experienced employment growth that exceeded the 5.5 percent increase for all occupations, the fact that wages were stagnant or declined, combined with persistently high unemployment rates, makes it highly unlikely that labor shortages exist at the national level in any of the top H-2B occupations. This does not mean that no labor shortages exist anywhere in the United States in these occupations-it is entirely possible and even likely that shortages exist in some states or localities-but the high national unemployment rates in H-2B occupations suggest that even the employers experiencing a local labor shortage might find available U.S. workers if they recruited outside their city, region, or state, and if they offered more attractive wages and benefits (including transportation and housing).

H-2B wages compared with the wages of all workers in top 15 H-2B occupations and the significance of prevailing wage regulations

Two additional issues deserve to be explored in depth. Are the wage rates that employers are required to pay H-2B workers high enough to attract U.S. workers and comply with the Immigration and Nationality Act's statutory requirement that an H-2B worker not be hired unless "unemployed persons capable of performing such service or labor cannot be found in this country"? 16 And are the prevailing wage regulations promulgated by the U.S. Departments of Labor and Homeland Security adequate to prevent downward pressure on the wages of U.S. workers who are employed in the top H-2B occupations?

This section reviews the average wages certified nationwide in the top 15 H-2B occupations in fiscal years 2012, 2013, and 2014, and compares them with the average wages nationwide for each occupation, as well with the average wage in each state where an H-2B job was certified. The difference between the H-2B certified wage and the average national or state wage in most cases represents how much employers can save on their wage bill, on average, by hiring an H-2B worker instead of a U.S. worker.

Since 2010, the rules governing the legally defined "prevailing wage" that employers are required to pay H-2B workers (corresponding to occupation and local area) have been modified several times by the departments of Labor and Homeland Security, and have been the subject of litigation and congressional appropriations riders. As a result, different sets of prevailing wage regulations were in place during fiscal years 2012, 2013, and 2014. This section explains the different prevailing wage rules in the different fiscal years, and explores how they may have affected the results. Finally, the impact of employer-submitted private wage surveys (i.e., wage surveys that were not conducted by the U.S. Department of Labor) on determining H-2B prevailing wages is also assessed.

The 2008 H-2B prevailing wage rule

In 2008, the U.S. Department of Labor (DOL) issued a regulation establishing the methodology for determining the prevailing wage that employers would be required to pay their H-2B employees. DHS and DOL describe the 2008 wage methodology in the preamble to H-2B regulations jointly promulgated in 2015 (DHS and DOL 2015, 24148):

The 2008 rule provided that the prevailing wage would be the collective bargaining agreement (CBA) wage rate if the job opportunity was covered by an agreement negotiated at arms' length between a union and the employer; the Occupational Employment Statistics (OES) wage rate if there was no CBA; a survey if an employer elected to provide an acceptable survey; or a wage rate under the Davis-Bacon Act (DBA), 40 U.S.C. 276a et seq., or the McNamara-O'Hara Service Contract Act (SCA), 41 U.S.C. 351 et seq., if one was available for the occupation in the area of intended employment. See 20 CFR 655.10 (2009). In the absence of the CBA wage, the employer could elect to use the applicable SCA or the DBA wage in lieu of the OES wage. See 20 CFR 655.10(b) (2009). The 2008 rule and the agency guidance implementing it required that when prevailing wage determinations were based on the OES wage survey, which is compiled by the Bureau of Labor Statistics (BLS), the wage had to be structured to contain four tiers to reflect skill and experience. 6

Footnote 6: The 2008 rule required that when the prevailing wage was based on the OES, it should reflect skill levels. The agency's implementing guidance required that the prevailing wage contain four wage tiers based on skill level. As a result, we refer throughout this rule to the 2008 rule's requirement of four wage tiers.

Because the OES survey captures no information about actual skills or responsibilities of the workers whose wages are being reported, the four-tiered wage structure, adapted from the statutorily required four tiers applicable to the H-1B visa program under section 212(p)(4) of the INA, 8 U.S.C. 1182(p), was derived by mathematical formula as follows to reflect "entry level," "qualified," "experienced," and "fully competent" workers: Level 1 is the mean of the lowest-paid 1/3, or approximately the 17th percentile; Level 2 is approximately the 34th percentile; Level 3 is approximately the 50th percentile; and Level 4 is the mean of the highest-paid 2/3, or approximately the 67th percentile.

In addition, wage methodology guidance published by the Employment and Training Administration (ETA) at DOL in 2009 provided "policy and procedural guidance" for private wage surveys submitted by employers for H-2B prevailing wage determinations (ETA 2009).

On January 19, 2011, the Obama administration issued a final rule to modify the 2008 H-2B wage methodology and 2009 wage guidance that would have set the H-2B prevailing wage "as the highest of the OES arithmetic mean wage for each occupational category in the area of intended employment; the applicable SCA/DBA wage rate; or the CBA wage" and "eliminated the use of employer-provided surveys as alternative wage sources, except in limited circumstances." (DHS and DOL 2015, 24148) (The limited circumstances included in which the H-2B job was not represented in the DBA, SCA, or OES, and the surveys submitted had to meet the methodological standards in the 2008 rule.) However, due to legal challenges in federal court, the administration postponed implementation of the 2011 final wage rule (DOL 2011a), and was also prevented by Congress from using any funds to implement, administer, or enforce the January 2011 wage rule as a result of enacted appropriations legislation (DOL 2011b). 17 As a result, the four-tiered 2008 wage methodology remained in effect, and the use of of private wage surveys under the terms of the 2008 wage rule and 2009 wage guidance continued to be permitted throughout all of fiscal 2012.

Fiscal 2012 H-2B wage data

Table 6 shows the top 15 H-2B occupations in fiscal 2012, and the nationwide average hourly wage for certified H-2B workers in each of the occupations. The 2012 OES average hourly wage for all workers in the occupation nationwide is listed next to the H-2B wage. In tables 6 through 11, the final column shows the difference between the average hourly certified H-2B wage and the average hourly OES wage (nationwide or by state); this is what employers save, on average, by hiring an H-2B worker instead of a worker who is paid the average (national or state) wage for the occupation. A negative value in the employer hourly wage savings column represents an H-2B job that was, on average, certified at a higher wage rate than the corresponding OES national or state average hourly wage.

Table 6 shows that in each of the top 15 H-2B occupations in fiscal 2012, the average hourly wage certified nationwide for H-2B workers was lower than the OES average hourly wage for all workers in the occupation. The biggest wage savings for employers was found in the First-Line Supervisors/Managers of Housekeeping and Janitorial Workers occupation; employers could save nearly $9 per hour on average by hiring an H-2B worker instead of a worker earning the national average for the occupation. In the top two occupations of Landscaping and Groundskeeping Workers and Forest and Conservation Workers, the average hourly savings were over $3. If for example, an employer hired an H-2B landscaper to work for 40 hours per week for nine months (approximately 36 weeks) at $3 per hour less than the local average wage, the employer would save $4,320.

These findings are consistent with what DHS and DOL described in 2013. Employers were allowed to pay the Level 1, 17th percentile and Level 2, 34th percentile wage-both of which are below the local average wage for the job the H-2B worker would perform-and were in fact taking advantage of this wage rule in order to pay their H-2B workers wage rates that were well below average:

According to the distribution of the 59,694 H-2B prevailing wage determinations the Department of Labor issued based on the Occupational Employment Statistics (OES) wage survey in FY 2011 and 2012, 16 72.3 percent of H-2B prevailing wage determinations based on the OES were at Level I. The percentages of H-2B prevailing wage determinations based on the OES at Levels II, III, and IV were 14.4, 5.9, and 7.4, respectively. In over 90 percent of those cases, the H-2B prevailing wage was determined at the wage rate lower than the mean of the OES wage rates for the same occupation. [Emphasis added]

Footnote 16: In FY 2011 and 2012, a total of 72,037 prevailing wage determinations were issued by the Department of Labor's National Prevailing Wage Center (NPWC) for employers seeking wage rates for H-2B workers. Of the 72,037, 59,694 determinations (82.9%) were based on the OES and 12,343 determinations were based on a collective bargaining agreement (CBA), the Davis-Bacon Act (DBA), or the Service Contract Act (SCA) prevailing wage, or employer-submitted wage surveys. (DHS and DOL 2013, 24057)

The results are similar when the average wages in each state and for each occupation for which data are available are compared with the average certified H-2B wage for the corresponding state and occupation. Table 7 (which can be found at the end of this report) shows that in the vast majority of cases, H-2B workers on average were certified to be paid lower wages than the state average. In 27 instances (representing a total of 675 workers), the average certified H-2B wage was higher than the state OES average wage for the occupation.

The 2013 H-2B prevailing wage rule, private wage surveys, and fiscal 2013 H-2B wage data

For approximately the first half of fiscal 2013, the 2008 H-2B wage methodology regulation and 2009 wage guidance remained in effect. But on April 24, 2013, the DHS and DOL issued a joint interim final rule (IFR) that was effective on the day it was published (DHS and DOL 2013), which eliminated the 2008 four-tiered wage methodology, and modified the regulation to require that:

If the job opportunity is not covered by a CBA, the prevailing wage for labor certification purposes shall be the arithmetic mean, except as provided in paragraph (b)(4) of this section, of the wages of workers similarly employed in the area of intended employment. The wage component of the BLS Occupational Employment Statistics Survey (OES) shall be used to determine the arithmetic mean, unless the employer provides a survey acceptable to OFLC under paragraph (f) of this section. (DHS and DOL 2013, 24061)

Although the April 24, 2013, IFR required employers to pay the "arithmetic mean," meaning the average hourly wage (which is in most cases identical to the Level 3 wage), and no longer permitted employers to pay their H-2B workers the 17th (Level 1) or 34th (Level 2) percentile wages, the 2013 IFR continued to permit the use of private wage surveys submitted by employers to set prevailing wage levels under the terms of the 2008 wage rule and 2009 wage guidance; something that the final 2011 wage methodology regulation was much more restrictive about permitting (but which never became effective). In a 2014 case, the United States Court of Appeals for the Third Circuit considered the legality and continued use of private wage surveys, and noted that "DOL allowed this unlimited use of private surveys despite its 2011 findings that such surveys are unreliable and should only be used in extraordinary circumstances." 18 The wage methodology that employers were required to use from April 24, 2013, through the rest of the fiscal year (ending on September 30, 2013) was the wage methodology promulgated in the 2013 IFR (the arithmetic mean by occupation and local area) along with DOL-accepted private wage surveys under the terms of the 2008 wage rule and 2009 wage guidance.

Table 8 shows the top 15 H-2B occupations in fiscal 2013, and the nationwide average hourly wage for certified H-2B workers in each of the occupations. As with Table 6, the final column shows the difference between the average hourly certified H-2B wage and the OES average hourly wage for all workers in the occupation; in other words what employers save, on average, by hiring an H-2B worker who is paid the certified wage instead of a U.S. worker who is paid the average wage for the occupation.

Table 8 shows that in 14 of the top 15 H-2B occupations in fiscal 2013, the average hourly wage certified for H-2B workers was lower than the OES nationwide average hourly wage for the occupation. The biggest savings was in the Construction Laborers occupation; employers could save $6.39 per hour on average by hiring an H-2B worker instead of a worker earning the national average for the occupation. In the top two occupations, the average hourly wage savings were again over $3. The only occupation where on average, the certified hourly H-2B wage was higher than the national OES average hourly wage was Cooks, Restaurant, where the average certified H-2B wage was $0.31 an hour higher.

The results are similar when comparing the average wages in each state and for each occupation for which data are available with the average certified H-2B wage for the corresponding state and occupation in fiscal 2013. Table 9 (which can be found at the end of this report) shows that in the vast majority of cases, H-2B workers on average were certified to be paid lower wages than the state average. In 34 instances representing a total of 2,403 workers, the average certified H-2B wage was higher than the state OES average wage for the occupation. While 2,403 H-2B certifications is still a very small share of all the labor certifications in the top 15 for fiscal 2013-accounting for only 3.5 percent of certifications in the top 15-it represents a larger share than in fiscal 2012, when only 1.2 percent of H-2B certifications in the top 15 were in occupations in a state where the average certified H-2B wage was higher than the state OES average wage for the occupation.

The 2013 H-2B prevailing wage rule and fiscal 2014 H-2B wage data

On October 1, 2013, at the beginning of fiscal 2014, the prevailing wage rule laid out in the 2013 DHS/DOL Interim Final Rule (IFR) had been effective for just over five months. Therefore, during the entirety of fiscal 2014, employers were required to follow the wage methodology in the April 24, 2013, IFR, along with DOL-accepted private wage surveys under the terms of the 2008 wage rule and 2009 wage guidance. This allows us to compare a full year of H-2B wage data under the 2013 IFR wage rule and private wage surveys with the OES average wages for the top 15 H-2B occupations.

The most obvious shift in the fiscal 2014 data displayed in Table 10 is that one-third of the top 15 H-2B occupations were on average, certified at an hourly wage that was higher than the national OES average hourly wage for the occupation, compared with only one occupation in fiscal 2013 and zero occupations in fiscal 2012. It is possible that the 2013 IFR requiring that employers pay the local OES average wage (unless a collective bargaining agreement existed for the job or if an alternative wage survey was accepted by DOL) may have raised average certified H-2B wages enough for this to occur. However, if employers were in fact paying the local average wage to their H-2B workers after implementation of the 2013 IFR, one could reasonably expect that the significant wage savings employers get by hiring an H-2B worker instead of a U.S. worker earning the local average wage would mostly disappear.

But hourly wages for H-2B Landscaping and Groundskeeping workers-the largest H-2B occupation, accounting for over a third of all H-2B jobs certified in fiscal 2014-were on average certified at a much lower hourly wage than the national OES average hourly wage for the occupation: $2.59 less. That means employers still saved significantly on their wage bills by hiring H-2B landscapers instead of local workers earning the local average wage. Employers hiring H-2B workers for other jobs in the top six, such as in seafood processing (as part of the Meat, Poultry, and Fish Cutters and Trimmers occupation), construction (Construction Laborers), and working for traveling fairs and carnivals (Amusement and Recreation Attendants), also saw significant wage savings despite the 2013 IFR requiring that H-2B workers be paid the local average wage.

Again, because the 2013 IFR required that the local average wage be paid, it would have been reasonable to expect that average certified H-2B wages would have risen higher than the wages shown in Table 10. However, two factors related to the H-2B prevailing wage regulations are likely to have reduced the average wage levels for which H-2B jobs were certified at in fiscal 2014. One is the requirement that employers pay their H-2B workers the collectively bargained-for wage, if one exists, even if it is lower than the OES average wage. As the New York Times reported in September 2015, a federal investigation is ongoing into whether an employer-created-and-controlled union was purporting to represent workers while bargaining with employers to keep wages low for H-2B workers for traveling fairs and carnivals (Meier 2015). 19

However, likely the main reason that wages certified for H-2B workers in fiscal 2013 and 2014 did not increase enough to achieve parity with the state and national average OES wages for all workers is that employers were allowed to continue submitting private wage surveys to determine H-2B prevailing wages under the terms of the 2008 wage rule and 2009 wage guidance. The CATA v. Perez decision in the Third Circuit noted in no uncertain terms that H-2B employers responded to the higher prevailing wage requirements in the 2013 IFR by substantially increasing the number of private wage surveys they submitted to DOL in order to keep certified H-2B wages low:

Congress has charged DOL with the duty to ensure that it grants certifications only if they do not adversely affect wages and working conditions of United States workers, and it is the burden of DOL to be mindful of and honor that charge. However, employers increasingly have been submitting private surveys authorized by Section 655.10(f) in order to obtain a wage rate that is lower than the OES wage rate indicates would be appropriate-the wage rate DOL itself has determined is necessary to avoid an adverse effect on foreign and domestic employee's wages. The 2009 Wage Guidance therefore establishes criteria contrary to both the letter and spirit of 5 U.S.C. § 706(2)(A) and (C), and DOL's use of it in the consideration of labor certification applications is unlawful. 20

A media report from Bloomberg BNA (Francis 2014) on the CATA v. Perez decision highlighted the increase in the use of private wage surveys in response to the 2013 IFR:

In the 12 months leading up to the March 2013 CATA decision striking down the 2008 H-2B wage rule, employers seeking labor certification for H-2B visas submitted a total of 49 applications using private surveys to determine the prevailing wage, the court said. By contrast, employers submitted 1,559 applications using private surveys in the nine months between July 1, 2013, and March 31, 2014-a 3,182 percent increase.

According to the court, 21.1 percent of those prevailing wage determinations certified wages less than the average wage for the lowest skill level on the OES survey, and 94.4 percent of the determinations included wages lower than the OES's Level II.

As the data revealed in the CATA v. Perez decision and reported by Bloomberg show, a significant number of employers began to request that DOL approve their submitted private wage surveys-by an increase of 3,182 percent soon after promulgation of the 2013 IFR-and in 21.1 percent of those determinations, the certified wage was lower than even the Level 1, 17th percentile wage for the position (by occupation and local area), and 94.4 percent of the determinations were for a wage that was lower than the Level 2, 34th percentile wage.

The aforementioned wage differential between the average OES wage and the average certified H-2B wage for Landscaping and Groundskeeping workers in fiscal 2014 is almost entirely explained by the new and increased use of private wage surveys by landscaping employers after promulgation of the 2013 IFR. Landscaping employers:

did not submit any employer wage surveys in the year prior to April 2013 despite being the industry employing the most H-2B employees. In the nine-month period from July 2013 to March 2014, 1,240 prevailing wage determinations for landscape workers (SOC Code 37-3011) were based on employer surveys, accounting for 42.7% of all the prevailing wage determinations made for that occupation during that period. DOL approved 97.7% of those surveys at wage rates below the OES Skill Level II wage rate. 21

This is clear evidence that the shift to the use of private wage surveys was a systematic response by H-2B employers to keep H-2B wages lower than the local average OES wage rate that would otherwise be required under the 2013 IFR.

The results by state and occupation for fiscal 2014 are similar to the two previous years' differences between the average certified H-2B wage and the average OES wage for the occupation in the state. Table 11 (which can be found at the end of this report) shows that in the vast majority of cases, again H-2B workers on average were certified to be paid lower wages than the state average. However, in fiscal 2014, the share of top 15 H-2B workers whose certified H-2B wage was higher than the state OES average wage for the occupation was greater than in fiscal 2012 or fiscal 2013. In fiscal 2014 there were 86 instances in which the H-2B average hourly wage was certified at a higher average hourly wage than the state OES wage for a particular occupation in a state. These instances represented 6,145 workers out of a total of 67,978 H-2B labor certifications in the top 15 occupations, or 9 percent.

The 2015 H-2B prevailing wage rule

On April 29, 2015, the Department of Homeland Security (DHS) and the Department of Labor (DOL) jointly issued another wage rule to establish the prevailing wage methodology for the H-2B program (DHS and DOL 2015). The April 29, 2015, H-2B Final Wage Rule became effective on the day it was published and superseded the April 24, 2013, Interim Final Rule (IFR). The April 29, 2015, rule is similar to the 2013 IFR in its requirement that employers pay their H-2B workers the OES average wage unless the job is covered by a collective bargaining agreement. It differs by prohibiting employers from choosing the Davis Bacon or Service Contract Act wage rates as a source for the prevailing wage unless the work performed by the H-2B worker is covered by a government contract. The April 29, 2015, wage rule also puts additional restrictions on the use of employer-provided wage surveys; wage data sources other than the OES will be considered for the purpose of establishing an H-2B prevailing wage only if the survey falls into one of the following categories:

(i) The survey was independently conducted and issued by a state, including any state agency, state college, or state university;

(ii) The survey is submitted for a geographic area where the OES does not collect data, or in a geographic area where the OES provides an arithmetic mean only at a national level for workers employed in the SOC;

(iii)(A) The job opportunity is not included within an occupational classification of the SOC system; or

(B) The job opportunity is within an occupational classification of the SOC system designated as an "all other" classification.

If the survey falls into one of these categories, then additional methodological requirements for the survey are listed in the remaining subsections of 20 C.F.R. 655.10(f).

Because the 2015 wage rule was published relatively recently, it will be difficult to assess the impact of the rule in the same comparative manner used in this report until future years of H-2B data are published. The 2015 wage rule has some obvious flaws, however, which could lead to results similar to past years when H-2B wages were mostly certified at below-average wages. The 2015 rule continues to allow paying H-2B workers an hourly wage rate that is lower than the local OES average if a CBA applies, and the 2015 rule still permits the use of non-OES wage surveys. While 20 C.F.R. 655.10(f) restricts which non-OES surveys may be used to establish an H-2B prevailing wage, still permitted are surveys "conducted and issued by a state, including any state agency, state college, or state university." Employers and employer groups might respond by requesting that state agencies and/or universities conduct new wage surveys in certain regions and occupations, and may even fund such surveys-and therefore perhaps exert undue influence on the results-since nothing in the H-2B regulations prohibits requesting that a wage survey be conducted by a public agency or a university and then privately funding it.

Amendments to H-2B rules in the Consolidated Appropriations Act of 2016

In addition, the 2015 wage rule was amended in Congress through a legislative rider included in the Consolidated Appropriations Act of 2016 (an omnibus bill to fund the government during fiscal 2016), which included a number of changes to the H-2B program (Lipinski 2015a; Siskind 2015; H-2B Workforce Coalition 2015; Mikulski 2015), and was signed into law in December 2015. The substance of the amendment that affects the H-2B wage rule is found in Section 112, and requires that:

The determination of prevailing wage for the purposes of the H-2B program shall be the greater of-(1) the actual wage level paid by the employer to other employees with similar experience and qualifications for such position in the same location; or (2) the prevailing wage level for the occupational classification of the position in the geographic area in which the H-2B nonimmigrant will be employed, based on the best information available at the time of filing the petition. In the determination of prevailing wage for the purposes of the H-2B program, the Secretary [of Labor] shall accept private wage surveys even in instances where Occupational Employment Statistics survey data are available unless the Secretary determines that the methodology and data in the provided survey are not statistically supported. 22 [Emphasis added]

As a result, employers will likely be permitted to use private wage surveys in a much broader range of circumstances, and this may result in H-2B workers being paid wages that are below the OES local average wage for their jobs. As of the time of publishing this report, the DOL has only given a preliminary indication of how it will interpret, implement, and enforce some of the December 2015 amendments to the H-2B program in the Consolidated Appropriations Act of 2016 (DOL 2016). DOL has not, however, explained in detail how it will implement the provisions relating to private wage surveys. DOL has also not yet indicated whether it will publish new regulations to implement these changes, either as an interim final rule or as a regulation that is subject to notice and comment procedures under the Administrative Procedure Act. H-2B wage levels in fiscal 2016 will depend much on DOL's interpretations and actions, and any possible litigation that results.

One of the other notable changes to the H-2B program in the Consolidated Appropriations Act of 2016 is found in Section 565, commonly referred to as the "returning worker exemption," which exempts foreign workers who participated in the H-2B program in fiscal 2013, 2014, or 2015 from being counted under the program's annual numerical limitation of 66,000. This could lead to a large increase in the number of H-2B workers in the United States; as a result of the returning worker exemption, the size of the H-2B program could as much as quadruple. However, previous years in which the returning worker exemption was the law of the land suggest the number of H-2B workers is more likely to double or triple, but ultimately will depend on employer demand. In fiscal 2007 for example, the last year the returning worker exemption was in place, nearly 130,000 H-2B visas were issued (Bruno 2015).

In addition, DOL has been prohibited in fiscal 2016 from using appropriated funds to enforce H-2B regulations that require "employers of H-2B workers to provide at least the same wages and other working conditions as they provide to H-2B workers to certain U.S. workers performing substantially the same work identified in the labor certification or performed by the H-2B workers," or to enforce the rule requiring employers "to offer workers full-time employment for a total number of work hours equal to at least three-fourths of the workdays of each 12-week period (or 6-week period if the employment covered by the job order is less than 120 days)" (DOL 2016). While DOL cannot enforce these rules during fiscal 2016, the substantive rules remain in place even in fiscal 2016. The Consolidated Appropriations Act of 2016 also prevents DOL from using funds to audit H-2B applications or to conduct assisted or supervised recruitment (i.e., where DOL helps employers search for willing and available U.S. workers).

Most of the December 2015 amendments to the H-2B program, including the amendment to the 2015 wage rule, will remain in place for all of fiscal 2016. If no further amendments are made through standalone legislation or appropriations legislation to fund the U.S. government in fiscal 2017, the original 2015 wage rule (as promulgated in April 2015) would become effective again at the beginning of fiscal 2017 and the restrictions on using appropriated funds to enforce the rule would expire.

Conclusion

The evidence presented here-flat wages and persistent high unemployment rates in the top 15 H-2B occupations for the past decade-sheds doubt on claims that there are labor shortages in the top 15 H-2B occupations. Members of Congress and the federal agencies tasked with administering the H-2B temporary foreign worker program should take these data points into consideration when employer groups and other corporate representatives urge them to modify the H-2B wage methodology or rules relating to the recruitment of U.S. workers. One sensible policy response could be to reform the H-2B program so that the availability of work visas is tied to occupations and regions that are experiencing proven and documented labor shortages; but that would also require that an entity of the U.S. government be tasked with assessing and declaring labor shortages, and perhaps publishing and continually updating shortage occupation lists, according to a selected methodology.

The increase in the share of H-2B wages that were on average certified at a wage higher than the state or national OES average wage from fiscal 2012 to fiscal 2014 suggests that the prevailing wage rules put in place in the middle of fiscal 2013 (by the 2013 DHS/DOL Interim Final Rule) may have put some limited upward pressure on H-2B wages. To recap, the 2013 IFR requires employers to pay the local average wage unless a collective bargaining agreement is applicable, or if the U.S. Department of Labor approves the use of a wage survey that it did not conduct. The intention of the 2013 Interim Final Rule was indeed to prohibit employers from continuing to pay their H-2B workers wages that were much lower than the average being paid to local U.S. workers in the same occupations. However, the use of private wage surveys by employers to determine H-2B prevailing wages in the 2013 IFR-which continued to use the 2008 wage rule and 2009 wage guidance on private wage surveys-has prevented certified H-2B wages from closing the gap with the average wages paid to other similarly situated workers in the United States.

The 2015 H-2B Final Wage Rule continues to permit wage surveys that were not conducted by the U.S. Department of Labor in some circumstances; and whether employers will continue to be allowed to underpay their H-2B employees vis-à-vis U.S. wage standards will depend on how the 2015 Final Wage Rule is implemented by the U.S. Department of Labor, if and when it becomes effective. In fiscal 2016, it is all but certain that the likely increased use of private wage surveys to set H-2B wages as a result of the December 2015 appropriations riders will lower the wages paid to H-2B worker to levels far below the local averages paid to similarly situated U.S. workers.

In addition to the December 2015 appropriations riders which became law, multiple legislative proposals were introduced in Congress in late 2015 (Lipinski 2015b) that would reform the H-2B program. Specifically the proposals would permanently reinstitute the use of private wage surveys and the four prevailing wage skill levels for determining H-2B wages that were introduced in the 2008 wage rule and 2009 wage guidance. If such legislative proposals or additional appropriations riders were enacted, they would likely ensure that the temporary foreign workers employed through the H-2B program will continue to be underpaid for the foreseeable future, which would continue to put downward pressure on the wages of similarly situated U.S. workers employed in the top H-2B occupations.

Acknowledgements

The author is grateful to Arthur Read, David Griffith, Ross Eisenbrey, and Meredith Stewart for the insightful comments and observations they provided during the drafting of this document. The author is also grateful for the valuable research assistance provided by Will Kimball and Tanyell Cooke. However, the author is solely responsible for any errors or omissions.

Endnotes

1. The 2015 wage rule (along with numerous other H-2B reforms) was published by DHS and DOL in April 2015 and was able to come into effect (was not postponed by litigation or appropriations legislation). However, in December 2015, Congress made changes to these rules through riders to omnibus appropriations legislation, as discussed at the end of this paper.

2. See Title III-Essential Worker Visa Program, Secure America and Orderly Immigration Act, S.1033, 109th Cong. (2005-2006).

3. For a detailed listing of the elements of the W-1 visa program in S. 744, see Costa (2013).

4. The employer must also demonstrate certain steps have been met; for example that the job was advertised to U.S. workers at the same wage in the labor certification. For more background about the labor certification process, see DOL's website on Foreign Labor Certification, " H-2B Certification for Temporary Non-Agricultural Work."

5. INA § 214(g)(1)(B); 8 U.S.C. § 1184(g)(1)(B)

6. H-2B workers who have their H-2B visas extended for longer than the original validity period will not be counted again against the H-2B annual cap. Also, fish roe processors, fish roe technicians, and supervisors of fish roe processing are exempt from the annual cap (see Pub. L. No. 108-287, § 14006, 118 Stat. 951, 1014 (2004)), and from November 28, 2009, until December 31, 2019, workers performing temporary labor or services in the Commonwealth of the Northern Mariana Islands (CNMI) or Guam are also exempt from the annual cap (see 48 U.S.C. § 1806(a)(2) as amended by sec. 10 of Pub. L. 113-235; 48 U.S.C. § 1806(b)).

7. See e.g., OFLC (2015b).

8. The one notable exception where OES data may be lacking is in the second-largest H-2B occupation, Forest and Conservation Workers, (SOC code 45-4011). In recent New Jersey District Court litigation in Comité de Apoyo a Los Trabajadores Agricolas (CATA) v. Perez case (1:15-cv-04014-RBK-JS Doc. 21-3, filed July 15, 2015, and see also Docs. 1-2 and 21-2), the plaintiffs argue that the Bureau of Labor Statistics did not sample critical industries employing H-2B workers in SOC code 45‐4011, and therefore, the OES wages reported do not calculate a valid average wage rate for workers in 11 states in which prevailing wage determinations are made for workers employed in SOC 45-4011. Specifically, plaintiffs note that excluded from the OES survey "are almost all of the industries that hire 96% of H-2B forestry workers, including: North American Industry Classification System (NAICS) 1131 (Timber Tract Operations); NAICS 1132 (Forest Nurseries and Gather of Forest Products); NAIS 114 (Fishing, Hunting and Trapping); and NAICS 1154 (Support activities for Forestry). The exclusion of the industries that employ most forestry workers calls into question the validity of the OES forestry wage even in those states where one is reported." Plaintiffs argue that Service Contract Act (SCA) wage rates are more appropriate for setting H-2B wage rates in forestry jobs because "The SCA survey...does not exclude the industries that hire H-2B forestry workers and, as a result, reports wages specific to H-2B forestry jobs in virtually all areas." (CATA) v. Perez (Doc. 21-3, at 34).

9. The poverty-level wage in the figure cited is calculated using an estimate of the four-person weighted average poverty threshold in 2011 of $23,010 (based on the 2010 threshold updated for inflation). This is divided by 2,080 hours to obtain a poverty-level wage of $11.06 in 2011. The poverty-level wage is roughly equal to two-thirds of the median hourly wage. This figure is deflated by CPI-U-RS (Consumer Price Index Research Series Using Current Methods) to obtain the poverty-level wage levels for other years. The threshold is available at the U.S. Census Bureau website.

10. According to its website, O*NET "is the nation's primary source of occupational information...containing information on hundreds of standardized and occupation-specific descriptors. The database, which is available to the public at no cost, is continually updated by surveying a broad range of workers from each occupation." See Occupational Information Network (O*NET) website, " About O*NET."

11. Occupational Information Network (O*NET) website, " O*NET OnLine Help, Job Zones,"

13. See e.g., Barnow, Trutko, and Piatak (2013) and Downs (2009)

14. See e.g., the Australian Government's Skilled Occupations List, and the UK government's Tier 2 Shortage Occupation List.

15. It must be noted that the labor market data metrics used for determining whether a labor shortage exists can also be usefully supplemented with additional evidence. For example, when assessing whether a labor shortage exists, the United Kingdom's Migration Advisory Committee (MAC) also interviews employers, workers, labor unions, and other stakeholders to get a more complete picture than can be gathered purely from national-level labor market statistics. (The MAC refers to these surveys as "bottom-up" evidence.) These qualitative data can be useful and round out the analysis when labor market data do not provide a clear-enough picture on their own (Martin and Ruhs 2011). Nevertheless, if unemployment rates in an occupation are exceptionally high and wages do not rise for a prolonged period of time, those two factors are strong evidence that a labor shortage does not exist.

16. Immigration and Nationality Act, § 101(a)(15)(H)(ii)(b) [8 U.S.C. §1101(a)(15)(H)(ii)(b)].

17. Multiple appropriations bills that were enacted continued to prevent DOL from using funds to enforce the 2011 wage rule; see Consolidated and Further Continuing Appropriations Act, 2012, Pub. L. 112-55, 125 Stat. 552, Div. B, Title V § 546 (2011); Consolidated Appropriations Act, 2012, Pub. L. 112-74, 125 Stat. 786, Div. F, Title I § 110 (2011); Continuing Appropriations Resolution, 2013, H.J. Res. 117, 112th Cong., 126 Stat. 1313 (2012); Consolidated and Further Continuing Appropriations Act, 2013, Pub. L. 113-6, 127 Stat 198, Div. F, Title 5 (2013).

18. Comité de Apoyo a Los Trabajadores Agricolas (CATA) v. Perez, No. 14-3557, Doc. No. 003111811504 (3d Cir. Dec. 5, 2015), at 15.

19. For further discussion, see also Costa (2015).

20. Comité de Apoyo a Los Trabajadores Agricolas (CATA) v. Perez, No. 14-3557, Doc. No. 003111811504 (3d Cir. Dec. 5, 2015), at 36-37.

21. Comité de Apoyo a Los Trabajadores Agricolas (CATA) v. Perez, No. 14-3557, Doc. No. 003111811504 (3d Cir. Dec. 5, 2015), at 26-27 (footnotes omitted).

22. Consolidated Appropriations Act of 2016, H.R. 2029, 114th Cong., § 112 (2015). Pub. L. No. 114-113.

Data sources
The tables and figure in this report draw from the following data sources
Bureau of Labor Statistics (BLS) Occupational Employment Statistics (OES). 2015. May 2014 National Occupational Employment and Wage Estimates.

Current Population Survey basic monthly microdata. Various years. Survey conducted by the Bureau of the Census for the Bureau of Labor Statistics [machine-readable microdata file]. Washington, D.C.: U.S. Census Bureau.

Office of Foreign Labor Certification (OFLC) (U.S. Department of Labor). 2015a. OFLC Performance Data.

O*NET OnLine. www.onetonline.org (accessed on July 8, 2015).

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Economic Policy Institute (EPI). 2013. " Share of Workers Earning Poverty-level Wages, by Gender, 1973-2013." The State of Working America.

Employment and Training Administration (ETA) (U.S. Department of Labor. 2009. Prevailing Wage Determination Policy Guidance, Nonagricultural Immigration Programs. Revised November 2009.

Essential Worker Immigration Coalition (EWIC). 2007. " Cut in Temporary Worker Program Weakens Immigration Reform." May 24.

Essential Worker Immigration Coalition (EWIC). 2015. Website home page accessed December, 2015.

Francis, Laura. 2014. " DOL's Use of Private Wage Surveys In H-2B Program Struck Down by 3rd Cir." Bloomberg BNA. December 8.

Gould, Elise. 2015. Even the Most Educated Workers Have Declining Wages. Economic Policy Institute. February 20.

H-2B Workforce Coalition. 2015. " H-2B Workforce Coalition Applauds H-2B Provisions in End-of-Year Congressional Spending Legislation." Website accessed December 16, 2015.

Lipinski, Jed. 2015a. " Foreign Guest Workers to Triple under New Federal Budget Bill." The Times-Picayune. December 21.

Lipinski, Jed. 2015b. " Foreign Guest Worker Visas Targeted in Cassidy, Boustany Bills." The Times-Picayune. November 11.

Luban, Rachel. 2015. " DOL Freezes Guestworker Program After Court Ruling." In These Times. March 17.

Meier, Barry. 2015. " Union Accused of Betraying Migrant Carnival Workers." New York Times. September 1.

Mikulski, Sen. Barbara. 2015. "Mikulski Fights to Support Maryland's Seafood Industry and Eastern Shore Jobs in FY16 Spending Bill." Email from Matt Jorgenson on Behalf of Sen. Barbara Mikulski, Office of Senator Barbara Mikulski. On file with the author. December 16.

Mishel, Lawrence, and Alyssa Davis. 2015. Income Stagnation in 2014 Shows the Economy Is Not Working for Most Families. Economic Policy Institute. September 16.

Monger, Randall. 2013. Nonimmigrant Admissions to the United States: 2012, Annual Flow Report. Office of Immigration Statistics, Department of Homeland Security. August.

National Employment Law Project (NELP). 2012. The Low-Wage Recovery and Growing Inequality. August.

Parker, Ashley, and Steven Greenhouse. 2013. " Labor and Business Reach Deal on Immigration Issue." New York Times. March 30.

Office of Foreign Labor Certification (OFLC) (U.S. Department of Labor). 2015a. OFLC Performance Data.

Office of Foreign Labor Certification (OFLC) (U.S. Department of Labor). 2015b. H-2B Temporary Non-Agricultural Labor Certification Program - Selected Statistics, FY 2014.

Schmitt, John. 2012. Low-Wage Lessons. Center for Economic and Policy Research. January.

Shierholz, Heidi, and Lawrence Mishel. 2013. A Decade of Flat Wages: The Key Barrier to Shared Prosperity and a Rising Middle Class. Economic Policy Institute. August 21.

Silverleib, Alan. 2013. " Senate Passes Sweeping Immigration Bill." CNN. June 28.

Siskind, Greg. 2015. " Siskind Summary: Important Immigration Provisions Included in Omnibus Appropriations Bill." Greg Siskind on Immigration Law and Policy (blog). December 22.

United States Government Accountability Office (GAO). 2015. H-2A and H-2B Visa Programs: Increased Protections Needed for Foreign Workers. March.

Tables 7, 9, and 11: State-by-state wage comparisons for H-2B occupations

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The H-2B temporary foreign worker program: For labor shortages or cheap, temporary labor?

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The Essential Worker Immigration Coalition (EWIC)-a lobbying group representing the interests of employers-claims that it is "concerned with the shortage of both semi-skilled and unskilled ('essential worker') labor" and thus "supports policies that facilitate the employment of essential workers by U.S. companies that are unable to find American workers."

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Raul Leon of Foreman, Inc., (and Paul Johnson Drywall)

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At the height of the economic recession, a perfect storm hit the Arizona construction industry.

The economic downturn, the raids on local businesses by Sheriff Joe Arpaio and, in 2010, the passing of Arizona's anti-illegal-immigrant measure SB 1070 compounded to cause a mass exodus from the Grand Canyon State of foreign construction workers, according to Raul Leon of Foreman, Inc., a company that helps U.S. employers find qualified guest workers. "60 percent-plus of the workers... were Latinos," Leon estimates. "A lot of [them] left, and they went to other states that weren't hit that hard by the recession."

According to USA Today, nearly 2.2 million total workers left the U.S. construction industry between 2007 and 2011. The trade group Construction Users Roundtable estimates that by 2017, there will be a nationwide shortage of 2 million construction workers.

To fill the gaps, Leon's company began offering its legal services to help companies navigate the little-known H-2B work visa program, which allows U.S. companies to bring in foreign laborers to work in a non-agricultural capacity for a limited time period (usually between five and 10 months.) The jobs have to be explicitly seasonal, and workers must return to their home countries for at least 90 days before reapplying. The H-2B visa program - which requires companies to demonstrate a lack of qualified American applicants - has proved a boon for some local construction companies, allowing them to complete projects ahead of schedule using workers who are contractually committed to only them. More Valley employers would likely use H-2B visas, if the process for obtaining them wasn't so complicated and costly.

According to Leon, Arizona is one of the most underserved states for H-2B visa workers, because companies don't know about it - and when he tries to tell them, they are "leery," not quick to believe the government would approve their request for foreign workers. According to data from the U.S. Department of Labor, in 2012 Arizona received 1,196 H-2B visas, accounting for less than 2 percent of the total H-2Bs issued nationwide that year. Texas used the most - 10,683 visas, roughly 14 percent of all H-2Bs in the U.S.

Hector Gonzalez, Francisco Velasquez and Jesus Arroyo are construction workers from Mexico, here on H-2B visas. They work for Paul Johnson Drywall, a client of Leon's who began utilizing the program two years ago. Interviewed in Spanish at a Tempe job site, the men say they don't want to move here permanently. They all have large families in Mexico and it wouldn't make sense to try to move them all across the border when they can work here for a while and then return.

Each man makes $14 an hour (the federal minimum wage in Mexico is 67 pesos - about $5.12 - a day). They'll be here for an average of five-and-a-half months and they're likely to reapply after they go home; this is Arroyo's seventh time here on an H-2B.

The H-2B program requires an arduous application process for the companies. They must meet the government's burden of proof for the visa, often spending thousands of dollars by the time the process is complete.

First, the company must prove they can't find American workers for the jobs. They must demonstrate they've completed their typical recruiting process, and that either no one's applying or those who are aren't qualified. Leon says the state workforce agency evaluates unemployment claims in the company's area to determine whether anyone filing unemployment claims would qualify for the work. In areas with high unemployment, Leon says, it's more difficult to get the visa.

The foreign workers must be interviewed by the U.S. consulate and undergo a background check. (If they've overstayed on an H-2B visa before, they can't get another one for at least a year.) They must also obtain a passport from their country of origin and an I-94 entry document. With all of this, the cost for workers usually ranges between $250-$500 (some companies, including Paul Johnson Drywall, reimburse those expenses).

For companies who can obtain H-2Bs, it can mean a significant leg up on the competition. Cole Johnson, president of Paul Johnson Drywall, said the program allows PJD to meet all its contracts on time or ahead of schedule. And H-2B laborers are only approved to work for the U.S. company that sponsors them, so competition can't poach the talent.

But Arizona's unemployment rate of 6.9 percent begs the question: Are Americans really unwilling to do these jobs? Johnson says it's a sense of entitlement. "Make no mistake," he says. "These are good jobs. But they're difficult jobs also."

Leon says he's told companies to advertise an inflated wage - say, $20 an hour for a $14/hour job - and still no one stepped up. He thinks Americans may seek easier (or air-conditioned) labor, which their fluent English can help them find.

Overall, the H-2B program helps everyone, Leon says. "The employers need the help, the workers need the job... it's the invisible hand working for everybody."

Workers Wanted
The top 10 jobs with the most approved H-2B visas so far in 2014:
Landscaping/groundskeeping
Forest and conservation workers
Amusement/recreation attendants
Maids/housekeeping
Construction laborers
Meat, poultry and fish cutters/trimmers
Coaches and scouts
Non-farm animal caretakers
Waiters/waitresses
Packers/packagers, hand
Source: U.S. Department of Labor

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At the height of the economic recession, a perfect storm hit the Arizona construction industry. The economic downturn, the raids on local businesses by Sheriff Joe Arpaio and, in 2010, the passing of Arizona's anti-illegal-immigrant measure SB 1070 compounded to cause a mass exodus from the Grand Canyon State of foreign construction workers, according to Raul Leon of Foreman, Inc., a company that helps U.S.

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"Creation of a pilot guest worker program designed to address the gap that currently exists between temporary visa programs for seasonal workers and the H-1B visa program for highly skilled immigrants."

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AHCA Applauds Senator Jeff Flake for Introducing the Willing Workers and Willing Employers Act

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"Hundreds of employment agencies exist to assist millions of Filipino workers."

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Structural flaws place one of the nation's visa programs at risk of abuse and trafficking, according to the Southern Poverty Law Center and the American Civil Liberties Union.

This is apparent to the Filipino Migrant Center, a Long Beach, California, non-profit organization. Since 2009 it has assisted more than two dozen Filipino labor trafficking survivors brought to the U.S. though the H-2B visa program.

"Once you share stories, there will always be guaranteed newer stories, emerging survivors," says Joanna Concepcion, the organization's executive director.

U.S. businesses of all sizes depend on the H-2B program, according to the U.S. Chamber of Commerce. In 2012 the Department of Labor issued new H-2B regulations to prevent forms of abuse and trafficking. Industry groups, including the chamber, stopped the 2012 regulations in court. They call for deregulation of the program and say it's already costly and cumbersome for employers to participate. Then in 2015 the DOL and the Department of Homeland Security jointly issued a new set of regulations, but Congress decided against funding certain aspects.

This contention is nothing new. Guest-worker programs have been heavily debated since the Bracero program, which filled U.S. agriculture positions left vacant during World War II. Ever since, industry groups, labor rights advocates and unions have argued over the need for foreign workers, workers rights and maintaining job market conditions.

The H-2B non-agricultural visa program is one of three main guest-worker programs created after decades of reform. Employers may hire agricultural workers through the H-2A program and highly skilled guest-workers through the H-1B program.

It works like this: Employers petition the DOL for guest workers. Employers demonstrate that they can't find U.S. workers to fill the positions and that hiring guest-workers won't affect the wages or conditions of similar U.S. workers. Once positions are approved, recruitment agencies in foreign countries often connect workers with positions. The Department of State screens workers in U.S. Embassies throughout the world. And the Department of Homeland security oversees the program's immigration aspects.

H-2B workers are historically the least protected, according to the Southern Poverty Law Center, or SPLC. On paper, H-2A workers are entitled to a list of protective regulations that H-2B workers aren't. These regulations included access to federally funded legal services for employment issues, Social Security tax exemption and free housing. The new 2015 regulations issued by DOL and DHS provide protections against employer retaliation, reimbursement for travel to the U.S. and a guarantee of three-fourths of the hours in the job contract. Congress decided against funding enforcement of the three-fourths rule.

These regulations specifically ban recruitment fees and employer retaliation to protect H-2B workers from labor trafficking scenarios such as debt bondage. In the past, H-2B workers were in danger before they even leave home, the SPLC says. Workers would be subjected to debt bondage after paying recruitment fees and transportation costs. But other structural faults still place H-2B workers at risk. Workers are unauthorized to seek employment other than what's printed on their visa, regardless of abuse or working conditions. Additionally, employers double as immigration sponsors and may easily retaliate against workers if they protest wages or working conditions, according to the ACLU.

In the Philippines, governing agencies are supposed to protect guest workers from illegal practices by recruitment agencies. But overseas employment is a large industry. Hundreds of employment agencies exist to assist millions of Filipino workers. And Filipino Migrant Center's Concepcion has seen enforcement fail against illegal practices such contract fraud that add to abuse and trafficking.

It's possible for U.S. law enforcement to work against traffickers by coordinating with international attachés and host governments, but "it's tough to hold people accountable. We are dealing with a different set of laws," says Special Agent Erik Breitzke of the U.S. Immigration and Customs Enforcement agency.

Trafficking in the Philippines is a result of much larger issues, such as poverty and the lack of opportunities, according to Alex Montances, a Community Organizer at the Filipino Migrant Center.

"Some of these human traffickers are also, because of the same root problems, turning to human trafficking," he says, "so they can support themselves and support their families."

Back in the U.S., effective governmental oversight of the H-2B program is extremely lacking, according to the ACLU. Once workers are on the job, the Department of Labor is responsible for checking up on workplace conditions, but it only has 1,000 inspectors responsible for all 135 million U.S. workers nationwide, the DOL noted in a statement to BuzzFeed News. H-2B visas alone are capped at 66,000 per year. Additionally, while the DOL identifies certain H-2B jobs as high risk, its workplace enforcement efforts are concentrated elsewhere, according the U.S. Government Accountability Office, or GAO.

Over the past decade employers have systematically violated H-2B regulations because "it's just too easy," according to SPLC Staff Attorney Meredith Stewart. Employers often confiscate and withhold immigration documentation, the SPLC finds. Visa petitioners engage in pervasive visa fraud, as documented by the GAO. And Eighty-two percent of the DOL's H-2B investigations uncovered violations in 2014. Employers owed $2.6 million in back wages to H-2B workers, the DOL reported to BuzzFeed News.

Enforcement is too low and the consequences are too weak to deter violations, Stewart says. Delinquent employers may be suspended from the H-2B program by the DOL for up to three years. Suspension is uncommon and doesn't always result after abuses and law violations are documented, according to the SPLC. Twenty-five H-2B employers were suspended between 2009 and 2014. And In March 2015, the DOL had let the statue of limitations lapse on more that half its H-2A and H-2B investigations, according to the GAO.

The lobby against more H-2B regulations is strong. Congressional members have pushed to continue defunding parts of the 2015 H-2B regulations. And a new H-2C guest-worker program is proposed with even less labor regulations, Stewart says.

The Chamber of Commerce states that employer violation concerns can be managed with existing regulations. On the other hand, the H-2B program needs a complete overhaul to address abuse and trafficking, according to the SPLC and ACLU. Their recommendations include the ability for workers to change employers, a pathway to residency and citizenship, oversight of recruitment agencies, increased enforcement of labor conditions and increased access to the courts for guest workers.

Montances also advocates to increase protective regulations.

"But then, above all, to educate the community," he says, "so they can look out for [abuse] and help identify other Filipino-tracked workers, or any other type of victim of trafficking, so they can get help."

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Guest worker program used as gateway for labor abuse, trafficking

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Structural flaws place one of the nation's visa programs at risk of abuse and trafficking, according to the Southern Poverty Law Center and the American Civil Liberties Union. This is apparent to the Filipino Migrant Center, a Long Beach, California, non-profit organization. Since 2009 it has assisted more than two dozen Filipino labor trafficking survivors brought to...

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"The Contributions of
New Americans in Arizona"

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"Farmworker visas more than doubled in Arizona, nation in recent years" 01.17.17

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WASHINGTON - The number of H-2A visas issued to agricultural workers in Arizona has more than doubled in the past five years, mirroring a national increase in the temporary "guest worker program" for non-citizens.

The U.S. Department of Labor certified 5,391 H-2A workers in the state in fiscal 2016, compared to just 2,110 that were certified in fiscal 2011, according to department data. Nationally, the number jumped from 77,246 workers to 165,741 in the same period.

Farmers said the workers are vital to their operations and the program is working well, providing a badly needed source of labor. However, labor advocates said the visa program is growing for all the wrong reasons by keeping wages low and workers powerless.

"The grower controls the visa"

The H-2A program is for seasonal workers, generally for a period of 10 months or less, to provide farms with "short-term agricultural labor when the number of available domestic workers is insufficient."

Employers who want to hire workers on H-2A visas first have to apply with the U.S. Department of Labor, which looks to make sure there are not enough able U.S. workers to fill the jobs and to make sure hiring foreign workers won't hurt wages or working conditions for U.S. workers. If OK'd by the Department of Labor, the employer then applies with Customs and Immigration Services for the visas, which workers can apply for in their home countries.

Bruce Goldstein, president of national non-profit Farmworker Justice, which benefits seasonal and migrant farmworkers, said one of the biggest problems with the program from the worker's point of view is that "the grower controls the visa."

"It is often a way to control the labor force and suppress improvement in wages and working conditions," Goldstein said.

He said the visa program is expanding because it is a "relief valve" for farmers to find cheap labor outside the United States.

"If the worker wants to come back following the next season, they have to hope the employer applies for a visa for that worker for the next season," Goldstein said.

But Thomas Hertz, an economist with the U.S. Department of Agriculture, said the H-2A program "is not the farm industry's first choice."

"Growers would like even more labor because demand for fruits and veggies keeps growing, too," Hertz said in a statement.

He said the farmworker visa program can be more costly for farmers because of administrative expenses and because it requires employers to supply housing and transportation for any H-2A workers they hire.

Visas help farms make up labor shortage

But for Tanimura and Antle, a farm group that operates in Arizona and other states, the H-2A visa program "has been working really well."

Wesley Van Camp, vice president of Tanimura and Antle, said the firm has been using H-2A visa workers for the past nine years to make up for a shortage of labor on farms in the Yuma region.

For the past five years, Yuma has been in the top 10 cities in the U.S. for the number of H-2A positions certified by the federal government. In fiscal 2015, according to the Office of Foreign Labor Certification, the Yuma area was certified for 2,255 H-2A positions, the fourth-highest in the nation.

Van Camp said the program has been helping the farm keep up with the "increasing demands for agriculture."

"That's why we turned to the H-2A because we couldn't keep up," Van Camp said.

"This is a nation of immigrants, not a nation of guest workers."
Bruce Goldstein, president of non-profit Farmworker Justice
But Farmworker Justice's Goldstein believes U.S. farmers are looking for cheaper workers overseas, not because they can't fill vacancies here.

"The opportunity to work inside the United States, even at the lowest-paying jobs ... can be enticing," he said.

For that reason, Goldstein said he believes farmers will continue to apply and give out H-2A visas as long as the government keeps approving them.

"They should not be the model for this country," he said of the visas. "This is a nation of immigrants, not a nation of guest workers."

Read or Share this story: http://azc.cc/2jWmMao

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Farmworker visas more than doubled in Arizona, nation in recent years

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WASHINGTON - The number of H-2A visas issued to agricultural workers in Arizona has more than doubled in the past five years, mirroring a national increase in the temporary "guest worker program" for non-citizens. The U.S. Department of Labor certified 5,391 H-2A workers in the state in fiscal 2016, compared to just 2,110 that were certified in fiscal 2011, according to department data.

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H.R.5657 - H-1B and L-1 Visa Reform Act of 2016 & S.2266 - H-1B and L-1 Visa Reform Act of 2015

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H.R.1019 - Partner with Korea Act

(House of Reps)

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Related Bills - H.R.1019 - 114th Congress (2015-2016): Partner with Korea Act

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Bills related to H.R.1019 - 114th Congress (2015-2016): Partner with Korea Act

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S.1547 - Partner with Korea Act

(Senate)

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Text - S.1547 - 114th Congress (2015-2016): Partner with Korea Act

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Text for S.1547 - 114th Congress (2015-2016): Partner with Korea Act

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Bill to expand S. Korean visas to 15,000

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Bill to expand S. Korean visas to 15,000

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Partner with Korea Act, S. 1547

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Immigration Bill Roundup: H-2B Cap, Refugee Resources - Law360

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Over the past week, federal lawmakers have kept busy on the immigration front, introducing bills that would allow for certain returning H-2B visa holders not to count against the annual visa cap, provide more visas for high-skilled workers from South Korea, and promote better services for refugees.

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"The majority of the program’s current users are neither small nor seasonal employers, but rather mid- to large-sized companies and recruiters that petition for H-2Bs to work for 10 months out of the year, year after year."

"The popularity of the H-2B program for temporary, seasonal, non-agricultural guestworkers has soared from just 15,706 visas issued in 1997 to an all-time high of 129,547 in 2007."

"American companies filed petitions to request nearly 300,000 H-2B workers in FY 2008.1"

"While many H-2B jobs offer low wages of less than $10 per hour, a substantial number of H-2B visas go to more skilled workers who earn up to $40 per hour. Industries that are particularly heavy users of the H-2B program include landscaping, forestry, hotels and restaurants, amusement parks and leisure facilities, and seafood processors."

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Download a pdf of this Backgrounder
CIS Fellow David Seminara is a Chicago-based writer and was a tenured member of the U.S. Foreign Service from 2002-2007.

A prior version of this article was published on the CIS website. The current version, which supersedes earlier versions, includes revisions that take account of information subsequently supplied to the author.

Americans don't want to mow your lawn. They don't want to serve you your lobster roll sandwich during your summer holiday in Maine. They won't drive the trucks that bring food to the grocery store you shop in, or chop down the trees that produce the paper you use, or perform at the circus you attend every summer. You'll also need the helping hand of a "temporary, seasonal" guestworker to help you get on the chair lift in Vail, and to learn how to ski or snowboard. Nor will Americans guard your swim club's pool, shovel the snow in your driveway, operate the rides at the amusement park you take your kids to, tidy up the hotel room you sleep in, or process the seafood you eat. Americans can't even be counted on to coach sports, or work construction jobs. American workers have grown soft, young people don't want to work, and the unemployed don't want to do much of anything strenuous these days.

These are the kind of flawed assumptions that have led to the creation and rapid growth of the H-2B visa program, which has resulted in more half a million jobs being filled by foreign guestworkers over the last five years, rather than Americans and immigrants already in the United States.

Despite the significant impact that the H-2B visa program has on American workers, the program receives scant media coverage compared to other guestworker categories. Issues surrounding the issuance of H-1B visas, for example, tend to receive far more media scrutiny because the beneficiaries and the victims are highly educated and often fall within the same social circles as journalists, and the topic of higher-paying skilled jobs is perceived to be more relevant to the kind of readership and viewership that advertisers desire. As the global recession continues to take its toll on the American economy, this is an opportune time to re-examine the H-2B program and to evaluate whether these jobs could be filled with people already in the United States. The goal of this report is to shed light on the poor conditions that H-2B guestworkers often toil in; to expose the damage that this program does to the most vulnerable sector of American workers: the poorly educated, students, minorities, and legal immigrants; to examine the recruiters who find workers and the employers who hire them; and to scrutinize the government's role in sanctioning and managing the H-2B bureaucracy.
Key Points

The popularity of the H-2B program for temporary, seasonal, non-agricultural guestworkers has soared from just 15,706 visas issued in 1997 to an all-time high of 129,547 in 2007.

The Save Our Small and Seasonal Business Act (SOSSBA) passed by Congress in 2005 provided an exemption for returning H-2B workers so that they would not count toward the annual 66,000 cap on H-2B visas. The SOSSBA was a windfall for H-2B employers, but Congress failed to renew the legislation in 2008. The U.S. Chamber of Commerce lists expanding the H-2B program as one of its "Policy Priorities for 2009."

Despite the global economic crisis, demand for H-2B guestworkers remains strong, even in areas with high unemployment rates. American companies filed petitions to request nearly 300,000 H-2B workers in FY 2008.

Use of the H-2B program has morphed from its original intent to help employers that need seasonal and/or temporary workers. The majority of the program's current users are neither small nor seasonal employers, but rather mid- to large-sized companies and recruiters that petition for H-2Bs to work for 10 months out of the year, year after year.

Many of the businesses filing H-2B petitions for foreign workers are "body shops" that have no actual "seasonal or temporary" need for labor. Body shops can petition for large numbers of workers and then essentially sell them off to companies that either could not get their own H-2B workers or did not know how to do so. Given the fact that H-2B has an annual numerical cap, critics of body shops argue that they "hoard" workers and then drive up the price for everyone else.

Despite credible allegations and even convictions for fraud and abuse of both H-2B workers and the program in general, neither the Department of Labor (DOL) nor the Department of Homeland Security (DHS) has ever barred a U.S. company from filing H-2B petitions. Some repeat offenders continue to have their petitions approved to this day.

U.S. H-2B employers and the U.S. recruiters they hire often partner with foreign recruiters, and then deny knowledge of the foreign recruiters' tactics when fraud and abuse are alleged. U.S. courts have not shown a willingness to try cases of abuse when the violations occur outside the United States, even if the case involves a job being performed in the United States.

While many H-2B jobs offer low wages of less than $10 per hour, a substantial number of H-2B visas go to more skilled workers who earn up to $40 per hour. Industries that are particularly heavy users of the H-2B program include landscaping, forestry, hotels and restaurants, amusement parks and leisure facilities, and seafood processors.

Employers value H-2B workers because their legal status in the United States is tied to their employment and because they often have extended families in their home countries depending on their wages, making them loyal and motivated workers. Racial discrimination may also induce U.S. employers to petition for H-2B workers rather than employ black American workers.

Hourly compensation for U.S. workers has stagnated since the H-2B program began to expand in 2002, and economists have found no evidence of a labor shortage in the occupational groups that constitute the bulk of H-2B employment.

H-2B employers are required to advertise job vacancies prior to opening them up to H-2B guestworkers, but the ads more frequently resemble legal notices than real enticements and are often specifically designed to attract as little attention as possible.

H-2B Basics
The H-2B nonimmigrant visa classification applies to foreign nationals seeking to perform non-agricultural labor or services of a "temporary nature" in the United States, but the term "temporary" has come to be essentially meaningless in the H-2B context.

Some key basics regarding H-2B visas:

The H-2B visa was created in 1986, as part of the Immigration Reform and Control Act, which split the H guestworker program into an H-2A visa for agricultural guestworkers, and an H-2B visa for non-agricultural guestworkers.

U.S. firms filing H-2B petitions must establish that their need for the services or labor is "temporary," regardless of how long that is.

The petitioner's need is considered "temporary" if it is a "one-time occurrence, a seasonal, peak load, or intermittent need."

U.S. Citizenship and Immigration Services (USCIS) more specifically defines temporary as "generally limited to one year or less," but allows H-2B workers' visas to be extended for an uninterrupted stay - either for the same or a different employer - of up to three consecutive years. After three years in the United States, H-2B visa holders must reside outside of the United States for 90 days. If they spend less than 18 consecutive months in the United States, they only need to depart for 45 days to reset the clock to zero and return as an H-2B. If they were in the United States for more than 18 months, but less than three years, they need to reside outside the United States for 60 days before returning on an H-2B visa. These regulations were loosened under the George W. Bush Administration to allow H-2B employers to retain "seasonal" workers for longer periods of time.

Congress has established an annual cap of 66,000 H-2B visas for each year, half of which become available on April 1, and the other half on October 1. SOSSBA allowed for "returning" H-2B workers to obtain H-2R visas that would not count against the cap. This act, which had nearly 150 co-sponsors in the House, pushed the total number of H-2B/H-2R's to an all-time high of 129,547 in 2007 (see Figure 1). This legislation was allowed to expire on September 30, 2007, to the great consternation of business interests that continue to lobby for its renewal.

Prospective employers of H-2B workers must first obtain certification from the U.S. Department of Labor (DOL) that 1) there are not sufficient U.S. workers who are able, willing, qualified, and available to do the temporary work; and 2) the employment of H-2B aliens will not adversely affect the wages and working conditions of similarly employed U.S. workers. (New DOL regulations may alter or end this requirement.)

Once the employer has obtained an approved temporary labor certification, the employer may file a Form I-129, "Petition for a Nonimmigrant Worker," with USCIS to classify the individual as an H-2B worker. Once the petition is approved, the worker may apply for an H-2B visa at a U.S. embassy or consulate abroad. Unlike H-1B visa applicants, H-2B visa applicants - who are often unemployed in their home countries - must overcome section 214 (b) of the Immigration and Nationality Act, which requires that applicants prove they intend to return home after their visas expire.

Employers are required to pay employees the prevailing wage (as set by the various state workforce agencies for each occupation and locality) and provide housing - though they are allowed to charge workers for it. H-2B workers are tied to the employer that files the petition for them; if a worker fails to turn up for work on five consecutive days, the employer is required to report the delinquency to the Department of Homeland Security.

DHS, in concurrence with the State Department, determines which countries are eligible to participate in the H-2B program, based on how cooperative each country is on deportation and other consular issues, as well as "how important the country is to the operation of the H-2B program."3 In 2009, citizens of the following countries are eligible to participate in the H-2B program: Argentina, Australia, Belize, Brazil, Bulgaria, Canada, Chile, Costa Rica, the Dominican Republic, El Salvador, Guatemala, Honduras, Indonesia, Israel, Jamaica, Japan, Mexico, Moldova, New Zealand, Peru, the Philippines, Poland, Romania, South Africa, South Korea, Turkey, Ukraine, and the United Kingdom.

Employers: We Want Our H-2Bs
A wide variety of U.S. employers rely on H-2B labor as an integral part of their labor force. Sectors of the American economy most dependent on H-2B workers include landscaping, forestry, hotels and tourism, seafood processing, restaurants, amusement parks, and construction. Popular websites like www.myvisajobs.com provide an inside glimpse at the types of companies that are importing H-2B workers and the specific jobs and wages they are securing. While many of the job openings listed on the site are what one might consider classic unskilled labor, some clearly are not. For example, the site lists approved H-2B petitions for professional coaches and athletes with employers like the U.S. Ski and Snowboard Association, which pay H-2B visa beneficiaries up to $6,500 per month.

In trying to assess how reliant some U.S. firms are on H-2B visa labor, it's useful to examine the outcry when Congress failed in 2008 to renew SOSSBA. Although H-2B visas are rarely covered in the mainstream media, most of the articles on the topic in the last year have been sympathetic to businesses' desire for more H-2B labor, and feature quotes from aggrieved business owners and their advocates complaining about the failure to renew SOSSBA and the perceived shortage of seasonal workers. A typically sympathetic piece in the Baltimore Sun carried the sub-heading, "Congressional Dispute on Visas Puts Shore Businesses in a Bind." A similar story was published in the St. Louis Post-Dispatch under the headline, "Visa Program Not Delivering As Many Imported Workers," making the "workers" sound like a commodity no different from soy beans or cocoa.

Trade journals are even more brazen in their cheerleading for renewal of SOSSBA. One of the more blatant examples of this phenomenon is a March 13, 2008, article in the Nation's Restaurant News with the headline, "Debate Over H-2B Visa Cap Threatens Serious Shortage of Seasonal Workers," which appeared directly below another front-page headline warning, "Cost-Wary Restaurants Lay Off Large Numbers." Apparently the editor of this publication saw no contradiction in these two juxtaposed articles.

Landscape Management covered the failure to renew the SOSSBA extensively, and in January 2008, ran a special section under the banner headline, "Crisis Planning," with an article titled, "What Now? Smart Strategies to Survive and Perhaps Even Prosper in Spite of the Delay or Loss of H-2B Workers," amidst the backdrop photo of a large group of worried-looking Mexicans in cowboy and baseball hats. The report contains a list of suggestions on "Living Without H-2B Workers," which recommends that companies do a better job of training their employees to improve productivity and reduce turnover, cut out unprofitable jobs and problem customers, extend the hours of current employees who want overtime, mechanize to improve efficiency, consider raising prices, and "get the help wanted word out."

In the segment about potentially raising prices, the author states that "few of the small owner/operators in your market use H-2B workers, so they'll see your scaling back as an opportunity to pick up some of your business." Indeed, I spoke to smaller landscaping companies who resent their larger competitors that use H-2B labor. Don Mullanack from All American Lawn Services in Vero Beach, Fla., who does not use H-2Bs, told me that he "hoped that they shut down the H-2B program and that all those companies that rely on it go out of business." The section on "Living Without H-2Bs" concludes with a question and a warning: "How can you make your job descriptions attractive to them [unemployed Americans]? Chances are you'll have to pay them more than you are used to paying."
Beholden to Special Interests
The April 16, 2008, congressional testimony provided by Rep. Tim Bishop (D-N.Y.) is typical of the kind of doom and gloom prophecies voiced by business owners who want more H-2B workers. "Without a returning worker exemption this year businesses in my district will be forced to close and my community will suffer .... Stimulating growth and returning our country to prosperity cannot occur without delivering such relief to America's small businesses .... We cannot leave small businesses who want to do the right thing with the unacceptable choice of going out of business or hiring illegal workers." Rep. Bishop is certainly not the only champion of the H-2B Program. No member of Congress has been a more vocal champion for H-2B employers than Maryland Senator Barbara Mikulski.

Sen. Mikulski has long been a champion for the business interests of large H-2B employers; particularly Maryland-based seafood and landscaping concerns. She authored an op-ed for the influential Capitol Hill newspaper The Hill in February 2008 titled "Saving our Small, Seasonal Businesses Means Fighting to Preserve H-2B Visas." The piece is typical of her efforts to paint H-2B employers as embattled small businesspeople who want desperately to hire Americans but simply cannot find any willing to work. Mikulski's advocacy on behalf of H-2B employers in her state has earned her the unwavering support of major H-2B employers and advocacy groups (see Table 5).

We examine Sen. Mikulski's recent campaign contributions here because she has been the public face and most vocal cheerleader for the H-2B program, but, in fairness, she is far from being the only politician feeding at the H-2B employer trough. There's plenty of blame to go around, as evidenced by the current bipartisan push to renew SOSSBA, which currently has 37 co-sponsors in the Senate, 21 Democrats and 16 Republicans. The House has a similar bill introduced by Rep. Frank Kratovil Jr. (D-Md.), which currently has 24 co-sponsors, including 12 Democrats and 12 Republicans.
Parting Gifts from George W. Bush
George W. Bush was a vocal advocate for guestworker programs. In 2004, Bush proposed a new guestworker program that, had it been enacted, would have tripled the number of visas issued to seasonal workers. On January 18, 2009, his administration published new regulations that significantly reduced oversight of the H-2B application process and extended the definition of "temporary" in the H-2B context from 10 months to up to three years. The move would also replace the need for employers to obtain H-2B labor certification, with an "attestation" that qualified U.S. workers could not be found. Associate General Counsel of the AFL-CIO, Lynne Rhinehart, gave congressional testimony regarding the changes and neatly summed up many of the problems, not only of Bush's regulatory changes, but of the H-2B program in general:

"Under the new rules, employers experiencing a long-term need for a larger workforce could completely avoid the demands of the domestic labor market by serially employing H-2B workers to meet this long-term need. This would drag down wages and working conditions for workers in the industry or region as a whole. The combination of self-attestation, the elimination of the state workforce agencies, and the broadened definition of "temporary" will further depress wages in the industries in which the H-2B program operates, to the detriment of U.S. workers. And, because there is an endless supply of citizens of foreign countries willing to work in the United States ... employers have little or no economic incentive to meet the economic demands of U.S. workers seeking a better wage."

As we go to press, it is not yet clear whether President Obama will repeal Bush's changes to the H-2B program, but the issue certainly presents him with an opportunity to side with the interests of American workers over the interests of big business.
Mom & Pops They Are Not
Advocates of raising the cap on H-2B visas frequently invoke the notion that the primary beneficiaries of the H-2B visa program are small, mom & pop-type businesses. In reality, it is usually cost prohibitive for small businesses to hire an immigration attorney to help them navigate the dizzying bureaucracy that goes with trying to obtain a DOL labor certification and ultimately importing and housing H-2B workers. The bulk of approved H-2B petitions go to medium- and large-size businesses that import hundreds, if not thousands, of workers each year, like Six Flags; major hotel chains, including Marriott, Ritz Carlton, and Westin; and large landscaping companies like the Brickman Group.

The president of the Brickman Group, Mark Hjelle, is also on the board of directors of Save Small Business (SSB), a lobbying group that calls itself "a grassroots educational coalition" whose mission is to increase the H-2B labor pool by renewing SOSSBA. SSB's website contains an FAQ on H-2Bs intended to dispel "myths" about the program. One of the so-called myths is that "People on welfare should be taking all of these jobs." The site claims that this is not feasible because welfare recipients lack the skills to perform H-2B jobs and do not live where the jobs are located (no mention of the fact that H-2B visa holders obviously don't live near the jobs either). An example cited is lifeguard jobs, "a lifeguard job requires that the applicant can swim. Not all welfare recipients can swim." This "grassroots" coalition to save "small business" appears to be run by medium- and large-sized companies that are major users of the H-2B program. Examining SSB's board members reveals the kind of companies that have a vested interest in the expansion of the H-2B program.

The president of the luxury 385-room Grand Hotel in Mackinac Island, Mich., is also a member of the SSB board. The hotel boasts a 500,000-gallon pool and the world's longest front porch. In 2008, The Grand received DOL labor certification to in-source 369 jobs with H-2B labor, including 25 wine stewards, 20 groundskeepers, 70 housekeepers, 20 chefs, 24 bellhops, 94 waiters, 114 kitchen helpers, and two stable attendants. Michigan currently has a 15 percent unemployment rate, but if the Grand is in dire need of workers, you wouldn't know it from their homepage. The career opportunities link is buried in small print at the bottom of the page. I filled out an online application in April 2009, which essentially just asked for my name, phone number, e-mail, and address, but was never contacted about a job opening. I followed up with a generic e-mail asking about job opportunities (using another name) and was told by someone in HR that there were no jobs available. I was not asked for a resume or any questions about what type of job I was looking for. The Grand's website has a generic job opportunities page making it appear as though they are hiring.

The vice president of SSB, Jack Brooks, is the president of J.M. Clayton Seafood and told the Wall Street Journal in 2009 that he typically imports about a dozen seasonal guestworkers per year, and claimed that he was trying to find Americans to fill job vacancies. In fact, the company requested and received DOL approval for 150 H-2B workers in FY 2007, and received approval for 149 H-2Bs in 2008, after requesting 150.

I asked Mr. Brooks in April 2009 why they did not list any job opportunities on the company website and he said, "I never thought of it, but that's a good idea, maybe I'll do it." Brooks went on to boast that his company had recently held a "job fair" to try to recruit American workers. I asked him where he held the event, naively expecting him to name a major town or city near the company's base in Cambridge, Md. "Hooper's Island," he responded. The U.S. Census Bureau recorded only 441 inhabitants on Hooper's Island, so it would seem to be a curious choice for a job fair. "You gotta recruit where the jobs are!" Brooks claimed. As of September 2009, there are still no jobs advertised on the company website. I e-mailed the company to inquire about job opportunities and never received a response.

Another SSB board member is Elizabeth Whitley, the chairman of Más (Mid-Atlantic Solutions) Labor, which describes itself as "the number-one for-profit service provider of H-2 services." As part of their "basic package," Más Labor offers "up to 10 Mexican workers" for $4,100-$5,300, delivery included. Más Labor represents a variety of big businesses - in 2008, Más Labor was listed as the agent on 482 different labor certification requests petitioning for a whopping 12,393 jobs (some are listed under Más Labor, some are listed as Elizabeth Whitley, some as Elizabeth D. Whitely, and others Elizabeth Whitley/Más Labor).

With the national unemployment rate now topping 10 percent, the U.S. Chamber of Commerce listed "expanding temporary immigration programs like the H-2B visa" as one of its "Policy Priorities for 2009." Another organization that has been a vocal advocate of expanding the H-2B program is the Essential Worker Immigration Coalition (EWIC), whose website claims that it is a coalition of groups "concerned with the shortage of lesser skilled and unskilled ('essential worker') labor." While there is no explanation on the website of why unskilled workers are more "essential" than others, or why they believe there is a "shortage" of such workers, there is a list of the coalition's members.

A quick scan of the EWIC membership list reveals a wide variety of special interest groups that share one common bond: a vested interest in the widest possible pool of hourly wage labor. EWIC and SSB are by no means the only groups advocating for an increase in H-2B visas - a basic Google search reveals a whole host of other like-minded advocacy groups including the Federation of Employers and Workers of America, the H-2B Workforce Coalition, and Immigration Works among many others. The Federation of Employers and Workers of America was listed as the petitioner's agent for 404 different H-2B labor certification requests in 2008, representing 12,559 jobs in-sourced to H-2B guestworkers.
Why Employers Prefer Guestworkers
The popularity of the H-2B program can be charted in the meteoric growth of the program (see table 1) from a mere 62 visas issued in the program's first year in 1987, to 15,706 issuances in 1997, to a whopping 129,547 in 2007. It should be noted that the yearly figures do not accurately reflect the total number of H-2B workers in the United States at any given time because workers are eligible to extend their visas for stays of up to three years and the numbers only reflect actual visa issuances by the State Department, not renewals or adjustment of visa status cases approved by the DHS/United States Citizenship and Immigration Services (USCIS). But why aren't Americans hired for the jobs that H-2B workers fill? I've spoken to numerous employers that use H-2B labor in some of the sectors of our economy that rely most heavily on seasonal guestworkers, including landscaping companies, seafood processors, ski resorts, and hotels. Below are some of the most commonly cited reasons why U.S. employers use H-2B guestworkers.

Dirty Work. Many employers are convinced that Americans no longer have the stomach for doing dirty, repetitive, or physically taxing work in difficult conditions. Business owners often claim that they've tried increasing wages and benefits to attract American workers, but that Americans simply do not want to take difficult jobs. These notions are contradicted by evidence that when companies offer attractive wages and benefits, they generally have little trouble finding American workers to do jobs in difficult fields like garbage collection, custodial work, and dishwashing.

For example, the Associated Press reported in March 2009, that the Edison Junior High School in Massilon, Ohio, received 700 applications for a janitorial job that offered a $15 per hour salary, plus benefits. DOL approved hundreds of H-2B labor certification requests for FY 2008 jobs in the Canton-Massilon area, which has an 12 percent unemployment rate. SSB board member Más Labor filed many of these petitions for landscaping companies all within an hour of the Canton-Massilon region.

A few of the examples were: Rice's Nursery in North Canton (27 workers for nine-month contract work at $6.85 per hour), Turfscape Co. in Twinsburg (65 workers for 10-month contract work, at $7.20), and Todd's Enviroscapes in Louisville, (44 workers, nine-month contracts, $7.38). The Federation of Employers and Workers also helped in-source 37 jobs in nearby Akron for R.B. Stout, Inc. The point here is that this is a part of the country that has plenty of Americans looking for work and willing to do difficult jobs. The only catch is that they want to make enough money to actually be able to support their families.

Americans Won't Move for Seasonal Work. Seasonal destinations that have a high cost of living like Cape Cod or Vail do not have wide pools of labor looking for seasonal hourly wage work, and so employers in these areas obviously need to recruit from outside their immediate area. The problem is that the Department of Labor only requires that employers recruit from within "normal commuting distance" of the actual job the employer seeks to fill. This means that if I own a business on Mackinac Island, Mich., I only need to make efforts to advertise and recruit locally, and not in say Grand Rapids or Detroit, where there would obviously be a much larger pool of unemployed applicants looking for hourly wage jobs. It requires a leap of faith to understand that if a ski resort in Breckenridge, Colo., for example, cannot fill its seasonal jobs locally, then the next logical step would be to recruit workers from Europe, rather than Denver. H-2B employers invariably claim that they do try to recruit from areas outside their immediate zip code, but that Americans won't move for seasonal work. Americans actually change their place of residence more frequently than almost any country in the world, and workers go where the best paying jobs are. Seasonal businesses in Alaska, for example, have long been able to attract workers from the lower 48 states, simply by offering attractive wages and affordable housing.

Racial/Ethnic Stereotypes and Discrimination. Black workers frequently compete for the kinds of hourly wage jobs that H-2B workers occupy. While there is no way to quantify the precise role that racial discrimination has played in the displacement of black workers in common H-2B occupations, there is strong anecdotal evidence to suggest that some employers would prefer to hire foreign H-2B labor because they harbor prejudices about black workers. I've heard from numerous H-2B employers that they use Mexican laborers because they perceive them as more highly motivated, less likely to make demands for raises, take sick days, or ask for improvements in working conditions compared to the kinds of workers these employers would have to hire if there were no H-2B program.

Given that the minimum wage in Mexico is about $4 per day, its easy to see how Mexican H-2B workers would value a $7 per hour, no-benefits job more than an American worker who might view the same opportunity as a dead-end job to be endured rather than valued. Mexican H-2B workers often come to the United States bearing the burden of large, extended families counting on them to send money back to Mexico, and thus they have extra motivation to "stick out" a tough and thankless job. Additionally, most H-2B workers arrive in the United States without families, so they are free of the kind of baggage that American workers have with respect to family obligations and commitments. They are in the country solely to work, and are single minded about making and saving as much money as they can. As we will explore later in this report, many H-2Bs from around the world have the added burden of trying to earn enough to pay back the large sums of money they pay headhunters in their home countries to arrange H-2B jobs for them.

Websites like www.latinlabor.com, www.mexican-workers.com, www.mexicanlabor.com, and www.maslabor.com play upon the positive stereotypes of the reliable Mexican worker. These are not just staffing agencies providing help to employers that need workers, but rather legal American companies that are actually selling Mexican workers as a commodity to businesses that want to employ them. It wouldn't be legal for American companies to only consider job applicants from just one ethnic group, but staffing services can market workers from one country, Mexico in this case, with impunity. For example, www.mexican-workers.com has a section on its website entitled, "Mexican Workers - The Obvious Choice" which extols the virtues of Mexican H-2B workers as "happy agreeable people," with a "strong work ethic" that are often "under-employed."

Carol Swain, professor of law at Vanderbilt University and the editor of the book Debating Immigration, told me "African American workers can be perceived as being too demanding, employers like the idea of being able to import more docile workers and some black leaders have expressed a reluctance to criticize another downtrodden group." Swain, an expert on immigration and its impact on black Americans, cited a Northwestern University study authored by Devah Pager that reported that whites with felony convictions were significantly more likely to get job callbacks than similarly qualified blacks with no criminal records. Obviously Latinos face workplace discrimination as well, but discrimination against black workers appears to be more pronounced.

Few, if any, of the major users of the H-2B program make any concerted effort to recruit in high unemployment, inner-city neighborhoods, or to advertise vacancies in publications and media outlets that reach the black demographic. I asked several different H-2B employers that complained to me of a shortage of workers about their efforts to recruit black workers and was frequently met with incomprehension. One crab processor in eastern Maryland scoffed at my suggestion that he consider recruiting in inner-city neighborhoods in nearby Baltimore. "Why would I recruit all the way over there?" he asked as though I were talking about another planet.

Students Aren't Available. American high school and college students have long been a sensible fit for seasonal employers that need summer help, but seasonal employers increasingly prefer the flexibility and commitment of H-2B workers over students who often have to abandon their jobs before Labor Day weekend to return to school. Many seasonal summer businesses are open during the shoulder seasons in April-May, and September-October, and students cannot always commit to working during these time periods.

Hiring Americans = Raising Prices. Business owners often claim that they'd like to raise workers' hourly wages and offer them benefit packages, but that if they did, they'd have to raise their prices as well. They argue that consumers ultimately benefit from the lower prices they are able to offer as a result of the labor savings they reap by in-sourcing H-2B labor. The connection between employee wages and consumer prices is beyond the scope of this report, but suffice it to say that the low wages = low prices theory has some holes in it. While the formula may seem logical, the reality is that: 1) businesses do not automatically pass on their labor savings to the customer - generally businesses are only going to charge as much as they can for their product or service, and will pass on labor savings to the customer only if they absolutely have to, and 2) employee wages are typically not the biggest factor in the pricing for most products or services.
Help (Not Wanted)
One of the many bureaucratic requirements of the H-2B program is that would-be H-2B employers need to demonstrate that they have made efforts to fill the jobs locally. The specific advertising requirement demands that prospective H-2B employers place two help wanted ads in the highest circulation daily newspaper in their area. The ads themselves are a prime example of what a charade the entire H-2B process is. First, the ads are nearly always run at the "wrong" time of year. Employers may not file for H-2B workers more than 120 days before the job actually starts, and because of the amount of bureaucracy involved and the numerical shortage of visas, companies need to start the H-2B process as early as they can. So jobs need to be advertised usually about four months before they are actually available. A ski resort that wants workers in November might be running ads in July and a crab processor that wants workers for the spring would be advertising in November. Obviously, very few people looking for seasonal, hourly wage jobs have the luxury of waiting four months or more to begin work.

Compliance ads themselves are easily distinguishable from normal recruitment ads - many of them are written by immigration attorneys or consultants to ensure legal compliance. Most look like legal notices, in that there is no boldface text, no italics, no thick borders around the ads to make them stand out, and they are filled with needlessly long job descriptions that make the jobs sound as unappealing as possible. The ads may as well say, "please do not apply for this job."

Typically compliance ads require respondents to travel to a state workforce agency to "register there for a referral" rather than directly to an employer. The ads do not list a website where applicants could find out more information about the application process and basic information like the hours that the career center is open. While it's easy to understand why DOL doesn't trust employers to screen applicants themselves, what kind of seasonal job applicant wants to have to travel to a job center, in the hopes of registering for a referral for a job that begins in several months?

Compliance ads all tend to be clustered together at the same time of year. For example, in late October, if you get out your magnifying glass and look hard enough in the help wanted section of your local newspaper, you will probably see a maze of compliance ads for landscaping jobs. A good example of this is the Sunday, October 26, 2008, help wanted section of the St. Louis Post Dispatch, which contains compliance ads from 27 different landscaping companies. Remarkably, all 27 ads are almost exactly the same, even though they are from distinct companies, indeed competitors, ostensibly trying to recruit from the same pool of labor. All of the ads advertise "temporary" work from February 15 to December 15 at $8.65 per hour. Not a single one of the 27 ads makes any attempt to differentiate itself by offering different wages or benefits or working conditions. If you wanted workers to respond to your specific ad, knowing that many of your competitors will also be advertising, wouldn't you want to try to mention something about your company? There is no information in any of the ads that would entice workers - none of the companies say anything about themselves or why anyone should want to work for them.

Additionally, compliance ads often end up in publications whose readership is a poor match for the kinds of jobs on offer. For example, J.M. Clayton Seafood in Cambridge, on Maryland's Eastern Shore, is required to advertise the job vacancies they have each year in a newspaper called the Easton Star Democrat, the largest daily newspaper in the immediate area with a very modest circulation of 16,752. There is nothing wrong with advertising in small newspapers, but the era of searching for jobs in newspapers is all but over and the DOL does not require jobs to be advertised online. Trying to reach young workers, legal immigrants, minorities, and other potential seasonal workers through the help wanted section of a local newspaper simply makes no sense.

Recruitment advertising sales reps were very candid in describing the farce that is H-2B compliance advertising. I asked one recruitment advertising director at a major daily newspaper in the Northeast if H-2B employers cared whether they received a response to their ads. "They don't want a response at all - and many of them are quite blunt about telling us that," she said, before going on to describe how some employers would demand that the job openings be removed from the newspaper's website. "We run their ad in the paper, and then it goes on our website for free, but there is no requirement for them to advertise on the Internet, so they ask us to take it off our site." Other sales reps described H-2B compliance advertisers wanting to run their ads during the week rather than on Sundays, when more people read the help wanted section.

I asked Jack Brooks, president of J.M Clayton Seafood, about his recruitment advertising expenditures. After a lengthy preamble about how difficult it is to find workers, he acknowledged that the last time his company placed a help-wanted ad was simply to meet the compliance requirement in November 2008 in the Easton Star Democrat, for jobs that were to begin Spring 2009. So despite Brooks' moaning to members of the media about how hard it is to find workers, the bottom line is that he devoted no budget whatsoever to advertising vacancies for the six months prior to when the work was to begin.

Advertising H-2B job vacancies Is essentially a formality. The reality of the complex H-2B process is that most employers need a lawyer or consultant to assist them, and once they've committed to trying to in-source H-2Bs, they've already gone past the point of trying to recruit local workers to fill the jobs. Employers obviously want to gain DOL labor certification that there aren't local workers to fill the H-2B jobs, so they actually have a vested interest in ensuring that there is no response to the ads that they place. Once a business has decided to utilize H-2B labor to fill vacancies, and has taken steps to make that happen, any local job applicants that express an interest in the vacancies are essentially just getting in the way.

Suspicious Petitions: Carrollton, Ky. A former colleague who worked at a very busy H-2B processing consulate south of the border recently told me about his post's efforts to investigate suspicious H-2B petitions they received from a number of companies located in Carrollton, Ky. (population 800), about an hour outside of Cincinnati, Ohio. Carrollton sits within Carroll County, which has a staggering 13 percent unemployment rate.

A company called Refractory Services had petitioned for 80 "janitors" to work from October 1, 2008, to July 31, 2009 at the Kentucky steel mill of North American Stainless ("NAS"). NAS is part of the Acerinox Group, the third-largest steel conglomerate in the world. According to the consulate, Refractory Services claimed that the janitors were needed to clean the NAS factory "during the slow season when the factory was not producing steel." The consulate delved into the case and discovered that the owner of Refractory Services had also petitioned under the name Harris Contractors for an additional 45 "laborers" to work from February 1 through November 30, 2008. (I subsequently discovered that the same person ran a third temporary labor service in Carrollton, a company called Carrollton Mill Services, which petitioned for 80 "production helpers" during the period January 1 through October 30, 2008.)

All of these petitions had been certified by the Department of Labor, which requires that the jobs have been advertised in local newspapers. Nevertheless, the officer's suspicions were aroused by the filing of multiple petitions in an area of high unemployment and by the seeming discrepancy between the 10-month duration of the temporary employment period and the claim that these workers were mainly needed during the mill's non-producing period. He contacted the Carroll County Chamber of Commerce to learn more about the purported seasonality of NAS's business and the purported unavailability of U.S. workers in a region with high unemployment.

The official, written response from the local chamber was blunt and surprising, especially considering that chamber of commerce people are nearly always cheerleaders for business interests, even when they collide with the interests of American workers. "My understanding is that NAS is a year-round producing mill," the Chamber wrote. "I contacted a local employment agency that indicated they have 154 people (presumably Americans) available to do light industrial contracting such as you have indicated. It appears to me that we have available American workers to fill any positions [the labor contractors] may have."

My own research backed up the consulate's own initial findings. According to NAS, there are no "non-producing" periods at the mill, although there can be times during the year when lesser production takes place. Although Refractory Services claimed that the janitors were needed during the slow period, NAS stated that the slow period was August and September, which is not the period covered by the petition. Concerning the local employment picture, a Chamber of Commerce employee told me over the phone: "We have way too many unemployed people here." I asked her if those people would be willing to do tough jobs for $7 per hour. "Absolutely," she answered, "we're not that lazy that we won't do tough jobs here!"

I do not know the final outcome of the consular investigation, but the initial investigation found evidence, supported by my own research, that Refractory Services misrepresented the duration and seasonality of NAS's needs for extra janitors, and that, notwithstanding the Department of Labor certification, there may be plenty of Americans in Carroll County looking for the jobs being filled by foreign H-2B workers.

Sadly, it is easier to find examples of abuse in the H-2B program than examples of government vigor in rooting out abuse. It's safe to say that this consulate's response to apparent abuses was the exception and not the rule. It is not the State Department's job to re-adjudicate H-2B petitions, and most consular posts and officers simply haven't the time or resources to investigate every doubt they may have about a Department of Labor certification. It should also be noted that neither DHS nor the DOL has any budget earmarked to combat abuse of the H-2B program. The Carrollton petitions just happened to arouse the suspicion of a particular consular officer, who made the time to investigate.
The "Great Recession" and the Impact of H-2Bs on American Workers
In 2008, some 2.6 million American jobs disappeared, in the most precipitous annual decline since World War II. Yet on July 29, 2008, USCIS announced that the H-2B cap for the first half of fiscal 2009 had been reached. According to the American Hotel and Lodging Association this is the earliest the H-2B cap has been reached since the inception of the program. Reports also indicate that the cap for the second half of FY 2009 was reached very quickly, with all petitions dated after January 8, 2009, being denied. These indicators demonstrate that even with the American unemployment rate topping double digits, and with nearly 16 million Americans looking for work, the demand for H-2B workers shows no signs of slowing down. Indeed, during a recession companies are looking to cut costs and may view the H-2B program as a good way to weather tough economic times.

Perhaps even more startling than the consistent demand for H-2B workers despite the recession, is the fact that some employers in particularly high unemployment areas like Bakersfield, Calif., Bend, Ore., Ocean City, N.J., and Vero Beach, Fla., continue to use, and in some cases, have actually increased their H-2B workforce despite local area unemployment rates of over 10 percent. Below is a sampling of H-2B employment certification requests that were approved by the DOL in FY 2008 despite very high local unemployment rates.

John's Island Club, Vero Beach, Fla., 15 percent unemployment rate: Received approval for 125 "dining room attendants" to be paid $7 per hour for work August 1, 2008, to May 31, 2009. Records indicate that John's petitioned for "only" 100 dining room attendants in 2007.

Dandy Souvenirs, Fresno, Calif., 15 percent unemployment rate: Petitioned and received DOL certification for 45 amusement park workers to work all four seasons, January 18 to November 12, 2008, at $7.74 per hour.

Mamma Marinez Concessions, Bakersfield, Calif., 14 percent unemployment rate: Petitioned for 30 amusement park workers and was approved for 29 in June 2008, making $8.14 per hour for a contract from August 14, 2008, to April 21, 2009.

Nor-Cal Pump & Well Service, Yuba City, Calif., 17 percent unemployment rate: Petitioned for six well drill operators and was approved for April 1 to October 31, 2008, at $23.85 per hour.

7th Mountain Resort (owned by Premium Resorts International), Bend, Ore., 14 percent unemployment rate: Petitioned for 15 housekeepers and 10 dining room attendants and was approved for April 1 to November 30, 2008, at $8.25 and $8.04 per hour.

Hammock Dunes Club, Palm Coast, Fla., 16 percent unemployment rate: Petitioned for 19 landscapers/laborers and was approved for 17, for April 1 to December 31, 2008, at $7.76 per hour.

Worldwide Entertainment, Las Vegas, Nev., 13 percent unemployment rate: Petitioned for 100 dancers at $14 per hour, but was denied. Apparently someone at the Department of Labor understood that there are at least 100 Americans willing to dance in Las Vegas for $14 per hour.

An examination of the first quarter 2009 unemployment rates for subsets of the American population most often in competition for common H-2B jobs (teenagers, students, immigrants, minorities, and those with less than a high school diploma) reveals that these segments of our society are already in dire straits when it comes to finding work. Consider the following unemployment rates for groups that frequently compete for H-2B jobs: immigrants, 10 percent; workers with less than a high school diploma, 17 percent; teens 16 to 17, 22 percent; black teens, 41 percent. Also consider the substantial percentage of persons aged 18-65 who are not currently in the workforce, either because they have given up looking for jobs, or by choice: just 33 percent of African-Americans with less than a high school diploma are in the labor force; just 18 percent of all teens 16 to 17 are in the labor force; and just 42 percent of natives with less than a high school diploma are in the labor force. The current 24 percent unemployment rate for teenagers is the highest figure on record.

The impact of the H-2B program on unemployed Americans is obvious, but what effect has the program had on Americans employed in industries that make heavy use of H-2B labor? Despite gains in productivity, wages for Americans have fallen relative to inflation since 2002, during a time of rapid growth of the H-2B program. Researchers from the Economic Policy Institute examined seven of the most common H-2B occupations and found that real wages in common H-2B occupations have been flat over the last seven years, unemployment in the H-2B sectors has been high relative to other sectors of the American economy, and that there is no evidence that the United States has a labor shortage in the most common H-2B occupations. I compared the median wages of several common H-2B occupations in 2003 versus 2008, using Department of Labor data, and found that in each case wage increases had failed to keep up with inflation. For example, the median hourly wage for housekeepers in 2003 was $8.06, and had climbed to only $9.13 by 2008. Dishwashers had progressed only from $7.27 to $8.19, hotel desk clerks from $8.43 to $9.37, and amusement park attendants from $7.35 to $8.40.

What cannot be measured statistically is how fast wages might have risen had there been fewer numbers of H-2B workers in the United States, and what negative effect H-2B workers have on the benefit packages of Americans working in fields with large numbers of H-2B workers. For example, the Institute for Women's Policy Research estimates that 85 percent of food service industry employees receive no paid sick leave whatsoever. Of course, eliminating the H-2B program isn't suddenly going to magically produce paid sick leave and health benefits for American workers who don't have them, but the more employers have to compete to attract staff, the better benefits they will be forced to offer.

Resorting to a guestworker program to address alleged "shortages" of workers in specific occupations and regions eliminates the possibility that the market will correct the "shortage." For example, if there aren't enough workers willing to take $8 per hour, no-benefit, slaughterhouse jobs in North Dakota, then the slaughterhouses need to self-correct the problem by offering higher wages and some benefits in order to attract workers from stagnant or contracting industries. If, instead of increasing wages and benefits, the slaughterhouses resort to the wide-scale use of guestworkers and keep the wages and benefits the same, the problem/shortage will persist and the market cannot self correct. Ross Eisenbrey of the Economic Policy Institute elaborated on this issue in April 2008 while testifying before Congress on the issue of seasonal work visas: "To jam market signals by resorting to a visa program for special types of workers has the potential to prevent the optimal allocation of labor, leading to market distortions. One such distortion is the dampening of wage gains."

Aside from the negative effects the H-2B program may have on wages, unemployment, and benefit packages for American workers, we also need to consider the intangible consequences of the program on our social fabric. Anyone who's ever taken a sociology course can tell you that employment is a good thing for a person's well being. Work teaches us to be responsible and keeps us out of trouble. When teenagers cannot find that first job, they miss out on a crucial rite of passage to adulthood. When students cannot find summer jobs, they have a more difficult time paying for college. When workers of all kinds fail to find work, they burden already strapped social service agencies, and are more likely to become substance abusers or engage in criminal activity. None of these factors will show up on the Department of Labor's website, but there are clearly negative social consequences to in-sourcing jobs that would otherwise go to Americans.
Bargain Labor, High Prices
Perhaps you acknowledge that the in-sourcing of H-2B labor is detrimental to American workers, but you believe that we all benefit from the lower prices that the employers pass onto consumers. An examination of the Department of Labor FY 2008 Foreign Labor Certification Data Center reveals that many H-2B employers aren't low-cost competitors, but rather companies that charge very high prices for their products and services, calling into serious doubt the notion that employers pass on their H-2B labor savings to consumers. In fact, upscale hotels appeared to be heavier users of the H-2B program than budget hotels. For example, I could find no youth hostels, and only one Motel Six and one Super 8, both in Wyoming, that used H-2Bs in 2008. These hotels petitioned for only 16 workers, whereas there were dozens of Marriott and Ritz Carlton locations that petitioned for well over 1,000 workers in FY 2008. Obviously budget hotels need fewer workers, but every hotel needs at least some staff. Below are examples of major H-2B hotel and resort employers and the prices they charge their guests.

The Four Seasons Hotel, Jackson Hole, Wyo. In 2007, it successfully petitioned the DOL for 118 H-2B workers, including clerks, kitchen workers, and housekeepers for the period December 1, 2007, to April 9, 2008; then the following season, they petitioned for an additional 118 workers to do the same jobs for the period May 1, 2008, to October 28, 2008, effectively providing them with year-round "seasonal" coverage encompassing 49 weeks of the year. Only a resort called the Four Seasons could consider that seasonal work. Although the Four Seasons pays relatively well, with H-2B salaries ranging from $11 to $15 per hour, the cost of living in and around Jackson Hole is quite high, and summer room rates start at $695 per night for a standard room, and $2,250 for a suite.

The Biltmore, Asheville, N.C. In 2008, the Biltmore earned DOL certification to import 157 guestworkers, including cooks, housekeepers, dining room attendants, and kitchen helpers for four-season work from April 1, 2008, to January 16, 2009. All were to be paid between $6.28 and $8.50 per hour. The Biltmore is the largest privately owned estate in America with 250 rooms. If you'd like to visit, admission tickets range from $39 (low season) to $55. If you manage a nice-sized hedge fund and want to stay at the four-star adjacent Inn on Biltmore Estate this summer, room rates start at $619 per night, and the best suites start at $4,000 per night.

The Westin La Cantera Resort, San Antonio, Texas. Petitioned for 100 housekeepers in 2007 for four-season work from January 18 to November 30, but was approved for only 50 to be paid $6.75 per hour. In 2008, the resort was again approved for 50 housekeepers for the same dates, and gave them all a very stingy three-cent raise, bringing them up to $6.78 per hour. La Cantera was also approved for an additional 25 kitchen helpers for the same dates, to be paid $6.75. Presumably, if they were asked back for this year, they may have been eligible for the same three-cent per hour raise that the housekeepers got. Standard rooms at the resort will set you back at least $259 per night.

Park Hyatt Beaver Creek Resort and Spa, Beaver Creek, Colo. Certified by the DOL to in-source 70 jobs to H-2Bs in 2008, for four-season work from June 15, 2008, to April 15, 2009. Positions filled included 15 kitchen helpers and 25 housekeepers paid $10.50 per hour and 25 waiters/waitresses paid $9.21 per hour. Room rates for weekends in January go for $495 and up.

Ritz Carlton, New Orleans, La. In 2007, The New Orleans Ritz attempted to in-source 345 four-season jobs, paying between $5.92 and $9.75 per hour with H-2B labor for the period October 1 to June 30, but was denied DOL certification. The hotel tried again in 2008, and won DOL certification for the same dates, this time for 195 jobs, paying between $6.15 and $13.50 per hour.

Nantucket Island Resorts, Nantucket, Mass. This conglomerate of six small resorts won DOL certification for 298 workers in both 2007 and 2008, for the period March 15 to December 15, paying H-2B workers between $8 and $12 per hour. Rooms for summer weekends start at $1,000 per night.

Luxury Hotels and Resorts. This company owns several high-end resorts around the country, and succeeded in earning certification to in-source 424 four-season jobs with overlapping petitions to ensure year-round H-2B labor coverage. Most of the jobs paid less than $10 per hour, including some as low as $6.79 per hour. Needless to say, none of the resorts in this group appear to be passing their H-2B labor savings on to their customers.
Americans Don't Want These Jobs?
The common stereotype about H-2B jobs is that they are the kind of backbreaking, low-paying, unskilled jobs that no red-blooded American would ever want. True, a majority of H-2B jobs are blue-collar and pay around $10 per hour, and some are tedious, labor-intensive, dangerous, or all of the above. Yet there are also a significant number of H-2B jobs that pay well, and others that are actually quite good jobs. Below are some examples of jobs that received DOL labor certification to be made available to foreign H-2B workers for FY 2008.

An immigration attorney named Kendra Kembel appears to specialize in the placement of high priced soccer coaches and sports instructors. Kembel won DOL labor certification to place 60 "head coaches," 90 "professional scouts," and "90 sports instructors" for the United Soccer Academy, based in New Jersey, for four-season work from February 4 to November 19, 2008, at a rate of $21 per hour. Kembel also won DOL approval for U.K. Elite Soccer Inc. in Cedar Knolls, N.J., to import 100 "sports instructors" for four-season work from February 11 to November 19, 2008, at a pay rate of $20 per hour.

The A-Team Connection, earned DOL labor certification to in-source 139 petroleum engineers in Baton Rouge, La., for four-season work from October 1, 2008, to August 1, 2009, at a pay rate of $27.40 per hour.

The Aspen Ski Company earned DOL certification to in-source 184 ski instructors with H-2B visas for three-season jobs from October 1, 2008, to April 30, 2009, at pay grades between $28.55 and $34.45 per hour.

Henkels & McCoy Inc. of Blue Bell, Pa., earned DOL certification to in-source 75 electrician jobs in Missouri that paid $32.38 per hour for four-season work from April 1, 2008, to February 1, 2009.

Thiro USA, Inc., based in Newington, Conn., successfully petitioned DOL to in-source 50 line erector jobs, 113 line installer jobs, and 75 line repairer jobs at pay rates of $37.56 to $38.41 per hour. The petitions were overlapping, ensuring that Thiro had H-2B labor for four-season work with varying contract dates, including November 26, 2007, to July 26, 2008; March 14, 2008, to December 22, 2008; May 29 to February 28, 2009; and July 27, 2008, to May 27, 2009.

America's Energy Company in Geismar, La., petitioned for 64 civil engineers, and won certification for 63, for four-season work from January 15 to November 15, 2008, at a pay rate of $26.43 per hour.

The Irby Construction Company in Jackson, Mo., earned certification for 100 line installers for four-season work from April 1, 2008, to January 31, 2009 at a pay rate of $24.50 per hour.

Professional Respiratory Care Services, Inc., in Phoenix, Ariz., won certification to in-source 50 respiratory therapist jobs paying $24 per hour, for four-season labor, from October 10, 2008, to July 1, 2009.

Workforce Plus, an immigration/recruitment agency in Baton Rouge, La., earned certification to in-source 100 "structural steel worker" positions with H-2B labor. The jobs were for four-season work, from January 20 to November 20, 2008, and paid $24 per hour.

R.F. in Mt. Arlington, N.J., was approved to in-source 39 construction jobs paying $22.45 per hour for four-season work from March 5 to December 5, 2008.

Mickey's Trucking Express, Inc., in Brookfield, Ill., won approval to import 40 tractor-trailer drivers at a pay rate of $20.46 per hour for four-season work from October 15, 2007, to May 31, 2008. The following year, the prevailing wage was reduced for tractor-trailer drivers in Illinois, and Mickey's accordingly brought in 39 new drivers and paid them the new prevailing wage of $14.31 per hour for four-season jobs from October 1, 2008, to May 31, 2009. (State labor departments often receive pressure from big business to revise, i.e. lower, prevailing wage determinations, and this is probably what happened here.)

Finding Amigos: U.S. Recruiters
Many H-2B employers contract out their H-2B hiring efforts to U.S. recruiting companies that either recruit foreign nationals themselves or, more commonly, partner with recruiters in foreign countries to find workers. Some employers choose to contract out the entire recruitment process to companies like MJC Labor Solutions and Amigos Labor Solutions, which advertise themselves as "one-stop shops" that will handle everything from recruitment to navigating the legal process to actually bringing the workers to the U.S. worksite.

Some recruiters, often referred to as "body shops," take matters one step further by actually petitioning directly for workers and then farming them out to other companies. These firms often charge end users up to double the hourly wage that they actually pay workers. For example, the website of MJC Labor Solutions says that, "on average, a laborer costs $16 per hour ... this wage rate includes the worker's compensation, tax matches, a payroll service fee, and a MJC Labor Solutions service fee." MJC mostly places landscapers who are paid around $8 per hour depending on their location.

A perusal of the Department of Labor's Foreign Labor Certification Data Center reveals that many of the businesses filing H-2B petitions for foreign workers are body shops that have no actual "seasonal or temporary" need for labor. Companies like Seasonal Labor Solutions, Seasonal Employee Concepts, and Seasonal Resource Services can petition for large numbers of workers and then essentially sell them off to companies that either could not get their own H-2B workers or did not know how to do so. Given the fact that the H-2B has an annual numerical cap, critics of body shops argue that they "hoard" workers and then drive up the price for everyone else. Bob Wingfield of Amigos Labor Solutions, which will file petitions in an employer's name, but does not petition for workers directly, told that me body shops who petition directly are "screwing up the whole process for everyone." Wingfield indicated that he didn't think petitioning directly was "kosher," but said that if "everyone else keeps doing it, I may have to consider it myself."

A recent cable drafted by the American consulate in Monterrey, Mexico, one of the largest H-2B processing posts in the world, entitled "Misrepresentations by Staffing Agencies under the H-2B Temporary Worker Program," sheds light on the problem. The consulate in Monterrey identified a "growing trend in which staffing agencies are petitioning for increasing numbers of H-2B temporary worker visas for needs that are neither temporary nor seasonal, but year-round." The cable states that "since February 1, 2009, post [Monterrey] has found more than 60 cases in which H-2B petitions had to be sent back to USCIS with requests for revocation." The cable also mentions staffing agencies petitioning for general laborers with low prevailing wages, and then farming those workers out to perform more specialized types of jobs, and called the agencies' job descriptions and locations submitted in their petitions, "at best informed guesses." Although the DOL requires agencies to specify the work locations where H-2B labor will be performed, Monterrey has found that numerous approved petitions do not contain specific information on where the actual H-2B work will be performed or for whom. The cable contains examples of fraud perpetrated by staffing agencies like GB Capital in St. Charles, Mo., and Workforce Plus in Baton Rouge, La., and concludes that staffing fraud "dilutes the benefits of the H-2B program for both H-2B employers and their beneficiaries and disadvantages U.S. workers who might want to compete for these jobs."

I spoke with Carl Hemphill, the founder of MJC Labor Solutions, and he was very defensive about petitioning directly for workers. "It's called sub-contracting, and it's completely legal," he said. Hemphill runs a website called www.latinlabor.com that has a "labor feasibility calculator" that I used in March 2009. The "calculator" allows you to enter in the number of workers you want, and, in my case, it computed that I could bring in Mexican workers for $2.95 per hour. Presumably this is the cost above and beyond what I'd pay the workers, but it wasn't clear from the website. Hemphill told me that he was "angry" at the government for "letting in so many illegals," and then denying employers the right to bring enough workers in legally. He also acknowledged that it's "impossible" to predict exactly how many workers he'll be able to place four or five months before the season begins, and that sometimes companies back out of agreements to place the workers he petitions for. This means that a body shop can petition for, say, 200 laborers, but might only be able to find jobs for a percentage of them. With the economy souring, the possibility of surplus H-2B workers is no longer far-fetched. Trying to convince H-2B recruiters that Americans will do some or even most of the jobs currently being done by foreign H-2B workers, however, may be a lost cause.

In June 2007, the Washington Post published a glowing article called "A Guestworker Program that Does Well by Migrants" about the H-2B program, but with a central focus on LLS (Latin Labor Solutions) International, a U.S. H-2B recruiter. The article is essentially a lengthy advertisement for LLS, which calls itself one of the largest "movers of H-2B workers" in the United States, touting both the company, and the larger H-2B program as inherently fair. A look at the LLS website provides an interesting glimpse into how U.S. recruiters market the H-2B program to U.S. employers. The site's FAQ page has two particularly revealing entries:

Q: I have workers who currently work for me. I know these workers are probably in the United States illegally, can I use the H-2B program in order to legalize them?

A: Workers must prove they have been living in Mexico for 12 to 18 months consecutively before they are eligible for a work visa. In addition they might also be requested to prove ties and solvency in Mexico.

Note that the answer isn't a flat-out "no," and that LLS doesn't state that the law requires H-2Bs to prove ties to Mexico.

Q: Can a worker that I sponsor for a visa work for another company?

A: The worker can only work for the employer who was authorized. If a worker decides to work for another company, he or she risks the opportunity of ever receiving a U.S. work visa and, if caught by authorities, could be deported.

So the bottom line message to employers here is: don't worry, your workers can't quit on you, even if they want to.

All of the H-2B recruiters I spoke to have convinced themselves that Americans simply do not want to guard pools, mow lawns, wash dishes, or perform any number of other duties that manual labor occupations require. "Oh, sure, they might try it," Bob Wingfield of Amigos Labor Solutions told me, speaking of landscaping jobs, "but by the second or third day behind the machine they'll quit." Wingfield is not alone in this opinion, despite the fact that Americans are already doing almost every type of H-2B job imaginable. I asked another H-2B recruiter, who did not want me to use his name, about some of the high wage jobs that were going to H-2B workers. "Americans don't like soccer!" he snapped, when I asked him about the 240 coaches, scouts, and instructors being imported from abroad and paid $21 per hour by the American Soccer Academy in New Jersey. "If Americans don't like soccer, why is there a need for 240 coaches, scouts and instructors?" I asked. "Damned if I know," he said.
A Different Way
Even in an industry like landscaping, which may rely on H-2B workers more than any other, you can still find Americans toiling away anonymously behind lawn mowers and hedge clippers in many American towns and cities. This spring, I met a crew of Americans working for a landscaping company called All American Lawn Services, Inc., in Denver, Colo., who found my interest in their company, and the fact that they were Americans willing to mow lawns, peculiar to say the least. I was out for a walk in the city's Washington Park neighborhood and just happened to bump into them as they were leaving a job. They were all in their early to mid-twenties, and to them, there was nothing unusual, demeaning, or shameful about their work, and rightfully so.

I tried to find this company on the Internet and was surprised to learn that there are actually numerous landscaping countries all around the United States with names like All American Landscaping or All American Lawn Services in places like Oklahoma City; Fair Lawn, N.J.; Vero Beach, Fla.; Gilbert, Ariz.; Nebraska City; and in the suburbs of Chicago. Of the numerous landscaping countries around America using some variation on the "All American" name, I could find only one in the Department of Labor's H-2B database - a company called All American Maintenance in Colorado Springs that earned DOL certification to in-source 30 landscaping jobs to H-2Bs in 2008. Of course, having a patriotic sounding business name can also be a smokescreen, as appears to be the case with a recruiting agency that absurdly calls itself U.S. Americans, Inc. U.S. Americans, Inc., according to the DOL Foreign Labor Certification database for FY 2008, served as the agent for 173 H-2B petitions, and won DOL approval to in-source 1,367 American jobs to H-2B guestworkers in 2008.

I spoke to employees and managers at a few of the All American landscapers and heard a completely different picture from that painted by the recruiters and other landscaping companies that were heavy users of the H-2B program. Don Mullanack from All American Lawn Services in Vero Beach, Fla., told me that in 22 years he had never needed to in-source jobs to H-2Bs. While many of his competitors hire illegals or use H-2B labor, Don hires Americans: white Americans, black Americans, Mexican Americans, Cuban Americans - Americans all the same. "I can't compete on price with those companies," he said, referring to those that use H-2Bs and/or illegals, "but I get business based on providing good service, and people like to do business with a company that hires Americans," he said, adding that "we've got too many unemployed people - we've got to put them to work, before looking for people outside the country." Don pays his workers $12 per hour, and usually has a list of Americans 15-20 deep waiting to work for him. "A man cannot support his family on $7 or $8 an hour, its hard enough at $12," he said.
Foreign Recruiters
Despite convincing evidence that the presence of H-2B workers in the United States has a negative impact on U.S. workers, it's important to acknowledge that the vast majority of H-2B guestworkers are basically good people who are in the United States to work and save money to improve the lives of their families at home. As a consular officer serving at American embassies overseas, I've interviewed numerous H-2B visa applicants and I met several more in researching this report. While I do not buy the notion that H-2Bs are a "last resort" for employers that cannot find workers, it is also clear that an H-2B worker from a developing country is obviously going to perceive a $7 per hour job at a hotel or on a construction site as a better career opportunity than an American born and raised in the United States will. That does not necessarily mean that Americans cannot or will not do the job, it just means they may not bring the same kind of enthusiasm and obedience to their employers as H-2B workers who are contractually tied to their employers for their legal status in the United States. An American in a lower-wage hourly job knows that his income puts him in the low end of the socioeconomic status spectrum; whereas the wages many H-2B workers earn puts them near the top of the wage-earning spectrum in their home countries, and they can return home like conquering heroes, highly valued in their extended families and wider communities, and often prized as prime marriage candidates.

Recruiting H-2B workers in their home countries is big business and it's a buyers market for brokers looking to secure workers, as there is never a shortage of people looking to work in the United States. In my experience as a consular officer, I noticed that no matter what country you go to, there is always a brisk trade in hearsay and misinformation regarding American visas. Visa applicants are often more likely to formulate viewpoints on U.S. visa laws and regulations from shady middlemen or random people than from the relevant U.S. embassy website. Many H-2B visa applicants know almost nothing about the jobs they will be doing in the United States, let alone U.S. visa laws. This lack of knowledge and the desperation of many visa applicants creates a fertile ground for unscrupulous recruiters who can smell opportunity more acutely than a vulture can smell a fresh carcass.

Recruiters entice their prey with often exaggerated claims of what they can earn in the United States and how life will be there, and then once the recruit is hooked, they demand whatever price they think they can command, sometimes "only" $1,500, but occasionally up to $20,000. Recruiters want to provide employers with workers who will complete their full tours of duty, so they often require workers to leave collateral, sometimes in the form of a deed to a house or car. In some cases, this collateral is to ensure that the worker completes his contract, while in others, it's because the worker still has to pay the broker its finder's fee. H-2B program regulations state that petitions will be denied if the petitioner "knows or reasonably should know that the beneficiary has paid or agreed to pay any facilitator, recruiter, or similar employment service as a condition of obtaining an H-2B offer." However, this provision can be overcome if the employer repays the fee or notifies USCIS within two working days of finding out about the payments. Practically, very few H-2B workers ever recover the recruiting fees they've paid to headhunters in their home countries, and most companies get away with pleading ignorance.

In order to understand how foreign recruiters can get away with such abuses, one needs to fully digest how desperate people in the developing world are to have an opportunity to work in the United States. Enter the phrase "work in the USA" into Google and you'll see 148 million results. Talk to any American who has spent time living in a developing country with high unemployment and low wages, and ask them how often they were asked about how to get a visa to work in the United States. As Americans, we tend to forget how badly others want to live here; recruiters, on the other hand, see the desperation every day and they use it to squeeze migrants for as much as they can get.
Guestworker or Intending Immigrant?
Unlike skilled H-1B applicants, H-2B applicants have to prove to a U.S. consular officer during the context of a visa interview that they have a residence abroad that they intend to return to. Section 214(b) of the U.S. Immigration and Nationality Act states "every alien shall be presumed to be an immigrant until he establishes to the satisfaction of the consular officer, at the time of application for admission, that he is entitled to a nonimmigrant status." This section of the law gives consular officers at U.S. embassies and consulates wide latitude to refuse any applicant who cannot overcome the presumption that he intends to immigrate. The law places the burden of proof squarely on applicants, meaning that they are guilty of being intending immigrants until they can prove their innocence. Given the fact that most H-2B applicants are unemployed in their home countries, and generally have very little savings or career prospects at home, one would think that it would be very difficult for H-2B applicants to get their visas.

The reality in the field, however, is that very few H-2B visa applicants are refused as intending immigrants. I explored the issue of high visa issuance rates in a CIS Backgrounder called "No Coyote Needed." Although that report dealt primarily with tourist visa issuance, the same principles apply to H-2B visa applicants. Applicants are given the benefit of the doubt as workers who are at least trying to "do it the right way" (as opposed to illegals), and posts are often too inundated with applicants to have time to investigate suspect applicants and petitioners, let alone deal with the avalanche of pressure and complaints that inevitably accompany visa refusals.

The State Department does not release refusal rates for H-2B visas, or even break down how many were issued by country, but consular officers from busy H-2B posts have told me that the vast majority of H-2B visa applications are approved. Mexico, which is far and away the largest source of H-2B labor, likely has one of the highest H-2B issuance rates, probably ranging between 85-90 percent, whereas posts significantly further from the United States might issue visas to somewhere between 70-80 percent of H-2B applicants.

The primary reason for this disparity is that it costs Mexican workers far less to get to work sites in the United States than it would for workers in Asia or Europe, who often pay much higher finder's and transport fees to their recruiters. In essence, it's simply more plausible and economically viable for Mexican workers to come to the United States for seasonal work than it is for say, Ukrainians, who, having invested far more and traveled further, might be more inclined to overstay their visas. At least this is the popular wisdom in State Department circles. Sadly, we have no way of quantifying how significant the H-2B overstay problem is because DHS still has no reliable entry/exit tracking system. Anecdotal evidence, however, indicates that the H-2B overstay problem is significant, and will become worse as H-2B workers begin to realize that without the exemption for returning (H-2R) workers, they are much less likely to be able to return to the United States to work year after year. Many H-2B employers also have presented the returning worker exemption debate as forcing them to choose between hiring illegals or going out of business. No one should be surprised if companies that cannot bring their H-2Bs back legally encourage them to overstay their visas, or apply for visitor's visas and then hire them back to work for them "off the books."
Abuse of H-2B Workers
It's extremely difficult to estimate how prevalent employer abuse of H-2B workers is, but there have been enough disturbing incidents involving major H-2B employers to conclude that abuse is a significant problem that the U.S. government has not addressed in any comprehensive fashion. Abuse can take many forms - and ranges from minor violations, such as shortchanging employees on their hours or overcharging them for their accommodations, to far more serious violations that border on human trafficking and indentured servitude.

Make no mistake - most H-2B employers are not abusing their employees, and many of the H-2B workers that I have interviewed have nothing but good things to say about their work experiences in the United States. Still, the persistence of reports of abuse, and the fact that so little has been done to address the issue is cause for serious concern. To date, neither the Department of Labor, nor the Department of Homeland Security has ever barred any U.S. company or recruiter from filing H-2B petitions, and indeed some abusers continue to have their H-2B petitions approved to this day. Clearly a significant part of the problem is that H-2B workers arrive in the United States in a very vulnerable position due to the following factors: many speak little or no English, they arrive in the United States deeply in debt after having paid off a recruiter to get the job in their home country, their legal status is tied to their U.S. employer, they hold few legal rights, and they often have left behind collateral (deed to a house or car title for example) with their recruiter to ensure that they will complete their contract. The examples of abuse allegations that follow afford us a glimpse into the kinds of exploitation that H-2B workers can be subject to.

Signal Corporation, Mobile, Ala. Hundreds of skilled, Indian pipe fitters and welders allegedly paid their life's savings to recruiters that promised them high-paying jobs and green cards in the United States, only to find themselves working in gulag-like labor camps where they were subject to abuse and threats by their American employer. The workers are now part of a class action lawsuit against the company and the Justice Department has opened an investigation, but the U.S.-based recruiter involved in the case, Global Resources, still had hundreds of H-2B petitions approved by the DOL in FY 2008, as did Signal's immigration attorney, Malvern Burnett. Executives from Signal remain politically engaged, making Fall 2008 campaign contributions to Rep. Gene Taylor (D-Miss.), and Sen. Roger Wicker (R-Miss.).

Eller and Sons Trees, Franklin, Ga. Some 3,000 forestry workers have joined a class action suit alleging that they've been cheated out of wages and were paid less than the minimum wage with no overtime pay. The workers have already won a summary judgment decision that the company violated their rights under the Fair Labor Standards Act and the Migrant and Seasonal Agricultural Protection Act. Nonetheless, Eller and Sons remains one of the country's largest users of the H-2B program, with the DOL certifying some 865 H-2B worker labor certifications in FY 2008.

Alpha Services, Hickory, Miss. Settled a lawsuit with a group of 500 H-2B forestry workers who alleged that Alpha Services failed to pay them prevailing wages and overtime. The DOL approved labor certification requests for Alpha Services to import 270 H-2B workers in FY 2008; as of May 2009, the company listed no jobs available on its website.

Shores and Ruark Seafood, Urbanna, Va. This company was fined twice by the DOL for failing to pay its H-2B workers the minimum wage. A group of 51 H-2B workers sued the company for back pay and won a $150,000 settlement. Nonetheless, DOL approved labor certifications for the company to employ 55 H-2B fish bin tender workers from September 1, 2008, to June 30, 2009, at exactly the prevailing wage of $6.55 per hour. Shores and Ruark's petition was submitted by SSB board member, Más Labor.

Brickman Group, Gaithersburg, Md. In 2008, a federal judge in the U.S. District Court in Philadelphia ruled that Brickman had to pay back wages to more than 100 H-2B employees for making visa, broker, and transportation deductions from their paychecks that brought their wages below the minimum wage. Brickman continues to have their petition requests approved by the DOL to this day.
Conclusion
The debate over H-2B visas is complex, and those on the polar opposite ends of it are both right and both wrong. Critics of the program often fail to acknowledge that: 1) it can be difficult (though not impossible) for American employers, especially truly seasonal ones, to recruit competent, reliable American staff, even during a recession; 2) some, though definitely not all, of the available American labor pool lacks the kind of motivation, skills, dedication, and flexibility that foreign H-2B labor can offer; 3) most H-2B workers and employers are good, honest people trying to make a living for their families and, while some employers are definitely guilty of abusing their workers, most are not; 4) H-2B workers and employers are at least part of the legal economy, contributing to our tax base, in stark contrast to illegal workers and those who employ them; 5) when Americans who aren't students take truly seasonal jobs, they sometimes cannot find work the rest of the year and end up using unemployment compensation and other public services; and 6) if the H-2B program were abolished, some businesses would struggle to compete, and some might go out of business.

On the other side of the debate, supporters of the H-2B program often refuse to accept that: 1) one of the primary reasons why H-2B employers have a hard time finding American staff is not because Americans don't want to work, but because Americans cannot support their families on low-wage, no-benefit jobs; 2) despite the fact that many (though not all) H-2B jobs offer low wages, and no benefits, many of these jobs could still be filled with legal American workers; 3) jobs that last nine or 10 months each year are not "seasonal;" 4) H-2Bs likely consume more in social services than they contribute in taxes, particularly because most receive no health care coverage from their employers; 5) H-2B employers' advertising and recruitment efforts in the United States are often pro-forma - too many employers assume that it's impossible to get American workers and don't really devote serious resources to trying; and 6) the H-2B program is particularly detrimental to less-educated Americans, minorities, and students, some of the most vulnerable segments of our economy.

While there are valid points on both sides of this debate, this report has focused more on the problems with the H-2B program, rather than the positive aspects of it, not because I want to tarnish the image of H-2B workers or those who employ them, but because the program, as it is currently operating, is rife with fraud and abuse that diminishes the entire system's integrity. My hope is that by pointing out all of the problems, we might be able to replace the current system with one that benefits truly seasonal employers, and does a much better job of ensuring that unemployed American workers don't lose out on jobs they would take and employed Americans do not have their wages depressed by guestworkers.

The present system is dominated by medium and large companies - many of whom are masquerading as seasonal employers - and recruiters who use their knowledge of the system to squeeze smaller companies that would like to use the system, but don't have the resources or inside knowledge on how to secure H-2Bs. Very few truly small, or truly seasonal employers can afford to use the lawyers and recruiters needed to navigate the current needlessly complex H-2B program. While President Obama and nearly every other American politician is quick to denounce companies that outsource American jobs, few politicians are willing to denounce companies that in-source American jobs here at home with foreign labor. Acknowledging the problems associated with in-sourcing American jobs at home with guestworkers does not mean "scapegoating" foreign workers - it simply means bringing an important debate out into the open for examination. It's time to get serious about trying to repair our broken guestworker system, and if we are not prepared to devote the resources necessary to restoring some integrity to the program, it should be ended. If the H-2B program is to continue, the following policy recommendations would help restore some measure of fairness to a system tarnished by fraud and abuse.
Policy Recommendations

Deny all H-2B petitions from recruiters and staffing agencies that do not directly employ H-2B workers. These middlemen have no need for seasonal labor and simply use their knowledge of the system to hoard labor, thereby driving up the cost and making it more difficult for legitimate seasonal employers to secure workers.

Don't allow companies that employ at least 50 workers to petition for H-2B workers that would exceed 25 percent of their total workforce. For example, petitioner with 1,000 full- and/or part-time employees should petition for no more than 250 H-2Bs per fiscal year.

Streamline and simplify the entire H-2B filing process so that smaller employers that do not have immigration attorneys can navigate the process themselves. A brief glance at the DOL's outline reveals how needlessly complex the entire process is.

Restore the "seasonal" concept of the H-2B visa by reducing the maximum initial petition validity from 10 to six months; employers that need workers during all four seasons are not truly seasonal.

Reinforce the "seasonal" nature of the program further by barring companies that file "overlapping" petitions that effectively give them year-round "seasonal" workers.

Restore the "temporary" nature of the H-2B visa by discontinuing visa extensions, which currently allow visa holders to remain in the United States for up to three consecutive years. H-2B employers that have permanent staffing "shortages" need to develop long-term plans to correct their problem, rather than permanently relying on importing foreign guestworkers.

Prevent companies that have laid off U.S. workers in one fiscal year from filing any H-2B petitions the following fiscal year.

Refuse H-2B petitions to place workers in high-unemployment regions of the United States.

Devote significantly more resources to scrutinizing labor certification petitions to combat fraud.

Devote significantly more resources to regulating H-2B employers' treatment of guestworkers to ensure that they are being paid the wage guaranteed on the petition, and that the employer is following all other program regulations.

Require the Departments of Labor and Homeland Security to perform a comprehensive analysis of the prior year's database of H-2B petitions to spot irregularities and fraud and prevent abusers of the program from using it again the following year.

Inform H-2B visa holders of their rights and provide a user-friendly way for them to report any malfeasance on the part of the employer to the Department of Labor, while reassuring the guestworkers that their names will not be forwarded to the employer if they file a complaint.

Permanently bar all companies that file fraudulent petitions or abuse the rules of the program or the workers themselves from using the H-2B program. This would include companies that are sued in U.S. courts by their H-2B employees for violations of the H-2B program's terms, if the employer is found liable.

Completely overhaul the local recruitment/advertising requirements of the program to make it easier for Americans to find jobs that otherwise would go to H-2B workers, with the following steps: 1) use the government's own website, www.usajobs.com, or the DOL website to advertise jobs that employers want to open up to H-2Bs. If a sufficient number of Americans apply for these jobs, the labor certification should be denied; 2) publicize this website, and these job opportunities at unemployment offices and on the various state websites where Americans file online unemployment claims; 3) rather than requiring employers to run two "compliance" ads in a local newspaper, require companies to provide evidence that they devoted at least $100 in paid recruitment advertising per employee that they are petitioning for. An employer that wants to in-source 100 jobs, would need to present evidence of a $10,000 ad campaign devoted to recruiting American workers.

Provide federal and state incentives and logistical support to private H-2B recruitment agencies to help them refocus their businesses from finding workers in high-unemployment foreign countries, to high unemployment towns and cities in the United States. State workforce agencies also need to help private seasonal businesses form recruiting partnerships with firms from different industries in other parts of the country. For example, ski resorts in the Rockies and New England and snowbird retreats in Arizona and Florida should be partnering with amusement park operators and lifeguard agencies in the Northeast and upper Midwest to recruit American workers willing to divide their time between seasonal employers.

End Notes
Includes H-2R visas during 2005-7 period when "returning" H-2B workers did not count against annual cap. Figures also include H-2B renewals.

De-Leon-Granados v. Eller and Sons Inc., 497 F. 3d 1214 (11th Cir. 2007).

Melissa McGrath, "Coeur d'Alene Firm Settles Labor Lawsuit," Idaho Statesman, November 16, 2006.

Lawrence Latane III, "Fifty One Workers Will Be Paid Back Wages," Richmond Times Dispatch, July 10, 1999.

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Dirty Work: In-Sourcing American Jobs with H-2B Guestworkers

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Download a pdf of this Backgrounder CIS Fellow David Seminara is a Chicago-based writer and was a tenured member of the U.S. Foreign Service from 2002-2007. A prior version of this article was published on the CIS website. The current version, which supersedes earlier versions, includes revisions that take account of information subsequently supplied to the author.

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H-2A Employers, ACA, and Charts by country & state.

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H-2A Employers, ACA, and Charts by country & state.

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"H-2A employers are the only group of employers who are required to pay inbound and outbound transportation, free housing, and provide meals for their workers. H-2A agricultural employers are among the most heavily regulated and monitored employers in the US."

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An H-2A visa allows a foreign national entry into the United States for temporary or seasonal agricultural work. There are several requirements of the employer in regard to this visa. The H-2A temporary agricultural program establishes a means for agricultural employers who anticipate a shortage of domestic workers to bring non-immigrant foreign workers to the U.S.

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H-2B Most Common Industries:
Resort & Hospitality
Retail Sales
Landscaping
Food Service & Processing
Construction
H-2A Visa I-129 petitions are expedited to accommodate the growing season.

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H-2A
"No annual limit."
"$325 filing fee"

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One of the key principles guiding the U.S. immigration system has been admitting foreign workers with skills that are valuable to the U.S. economy. Current U.S. immigration law provides several paths for foreign workers to enter the United States for employment purposes on a temporary or permanent basis. This fact sheet provides basic information about how the employment-based U.S. immigration system works.

Temporary Employment-Based Visa Classifications

There are many different temporary employment-based visa classifications. Most of the classifications are defined in section 101(a)(15) of the Immigration and Nationality Act (INA), and the visa classifications are referred to by the letter and numeral that denotes their subsection of that law. Temporary employment-based visa classifications permit employers to hire and petition for foreign nationals for specific jobs for limited periods. Most temporary workers must work for the employer that petitioned for them and have limited ability to change jobs. In most cases, they must leave the United States if their status expires or if their employment is terminated.

Overall, the total number of temporary employment-based visas issued has increased since Fiscal Year (FY) 2000, with a slight peak in Fiscal Years 2007-8 and a steady increase since FY 2009 (Figure 1).
Figure 1. Nonimmigrant Visas Issued By Select Classifications FY 2000-2015
Note: Totals include spouses and children of primary beneficiaries.U.S. Department of State, "Classes of Nonimmigrants Issued Visas (Including Border Crossing Cards)," Report of the Visa Office, 2000-2015, https://travel.state.gov/content/visas/en/law-and-policy/statistics.html.

The visa classifications vary in terms of their eligibility requirements, duration, whether they permit workers to bring dependents, and other factors. Table 1 includes information on several of the most common temporary employment-based visa classifications.

Table 1: Characteristics of Common Temporary Employment-Based Visa Classifications

Who is eligible?

Certain foreign professionals in "specialty occupations."

Temporary agricultural workers from certain designated countries.

"Seasonal" non-agricultural temporary workers.

Certain foreign workers employed by certain entities abroad that are related to U.S. employers, whose services are being sought by their employers in the United States.

Are there any numerical annual limits?

65,000 per year, plus 20,000 more for foreign professionals with a U.S. master's or higher degree.

No annual limit.

66,000 per year.

No annual limit.

Initially admitted for a period of up to three years; may be extended for up to six years total.

Initially admitted for period of approved employment; may be renewed for qualifying employment in increments of one year each for a maximum stay of three years.

Initially admitted for a period of up to one year; may be renewed twice for a total of up to three years.

Initially admitted for a period of up to three years; may be extended for up to five (L-1B) or seven (L-1A) years.

Employer requirements

The employer must attest that employment of the H-1B worker will not adversely affect the wages and working conditions of similarly employed U.S. workers. Employers must comply with wage requirements.

The employer must attest that no qualified U.S. workers who can fill the position are available. Employers must comply with recruitment, wage, benefits, housing, transportation, and other requirements.

The employer must attest that no qualified U.S. workers who can fill the position are available. Employers must comply with wage, housing, transportation, and other requirements.

No requirements regarding adverse effects, wages, housing, etc.

May the foreign workers bring their spouses and children under 21?

Yes, spouses and children under 21 may enter on an H-4 visa, and certain spouses are allowed to work.

Yes, spouses and children under 21 may enter on an H-4 visa but may not work.

Yes, spouses and children under 21 may enter on an H-4 visa but may not work.

Yes, spouses and children under 21 may enter on an L-2 visa, and spouses are allowed to work.

Employers must pay filing fees and may need to pay additional fees in order to petition for foreign workers. Table 2 provides information on the various fees associated with key visa classifications. Processing employers' petitions can take several months. Most employers may file a Request for Premium Processing Service (Form I-907) and pay a filing fee of $1,225 for petition processing within fifteen days of U.S. Citizenship and Immigration Services (USCIS) receiving the petition. The election of the premium processing service does not provide the petitioner with any advantage with regard to categories with annual numerical limits.

Table 2: Required Fees for Common Temporary Employment-Based Visa Classifications

$460 filing fee. Employers may be required to pay an additional anti-fraud fee of $500. Employers with at least 50 employees, more than half of whom are in H-1B or L-1 status, may be required to pay an additional fee of $4,000. Certain employers must pay an additional fee of $750 or $1,500 to fund programs to address skill shortages in the U.S. workforce.

$460 filing fee plus $150 anti-fraud fee.

$460 filing fee. Employers may be required to pay an additional anti-fraud fee of $500. Employers who have at least 50 employees, more than half of whom are in H-1B or L-1 status, may be required to pay an additional fee of $4,500.

Source: USCIS, "Instructions for Petition for Nonimmigrant Worker," January 17, 2017, 25-26, https://www.uscis.gov/sites/default/files/files/form/i-129instr.pdf; USCIS, "New Law Increases H-1B and L-1 Petition Fees," last updated January 12, 2016, https://www.uscis.gov/news/alerts/new-law-increases-h-1b-and-l-1-petition-fees.

Permanent Employment-Based Immigration

Lawful permanent residency allows a foreign national to work and live lawfully and permanently in the United States. Lawful permanent residents (LPRs) are eligible to apply for nearly all jobs ( i.e., jobs not legitimately restricted to U.S. citizens) and can remain in the country even if they are unemployed. Immigrants who acquired lawful permanent resident status through employment may apply for U.S. citizenship after five years.

The adjustment of status to permanent residency based on employment generally involves a three-step process:

First, employers seeking to petition on behalf of foreign workers are commonly required to obtain certification from the Department of Labor (DOL), establishing that there are no U.S. workers available, willing, and qualified to fill the position at a wage that is equal to or greater than the prevailing wage generally paid for that occupation in the geographic area where the position is located.

Second, the employer is required to petition USCIS for the foreign worker. Immigrants can petition for themselves under limited circumstances.

Third, a foreign worker who is already in the United States in a temporary visa classification may apply for "adjustment of status" to permanent residence upon the approval of the employer's petition, if there is a visa number available. If these conditions have been met and the individual is outside the United States, or is in the United States but chooses to apply for an immigrant visa at a U.S. Embassy or Consulate abroad, the individual files an immigrant visa application, which is processed by a U.S. consular officer.

Most foreign nationals who obtain permanent residency are already in the United States. In FY 2014, 86 percent of employment-based LPRs adjusted to LPR status and 14 percent arrived from abroad.
Table 3: Permanent Employment-Based Preference System
The overall numerical limit for permanent employment-based immigrants is 140,000 per year. This number includes the immigrants plus their eligible spouses and minor children, meaning the actual number of employment-based immigrants is less than 140,000 each Fiscal Year. The 140,000 visas are divided into five preference categories, detailed in Table 3.

3: Skilled Workers, Professionals, and Unskilled Workers

Skilled workers with at least two years of training or experience, professionals with college degrees, or "other" workers for unskilled labor that is not temporary or seasonal.

40,000*** or 28.6%

"Other" unskilled laborers restricted to 5,000

Total Employment-Based Immigrants

140,000 for principals and their dependents

*Plus any unused visas from the 4th and 5th preferences

**Plus any unused visas from the 1st preference

***Plus any unused visas the 1st and 2nd preference

Source: William A. Kandel, Permanent Legal Migration to the United States (CRS Report No. R42866) (Washington, DC: Congressional Research Service, 2014), 4, https://www.fas.org/sgp/crs/homesec/R42866.pdf.

Numerical limits and Per-Country Limits

In addition to the annual numerical limit on the number of employment-based immigrant visas, each country is limited to seven percent of the worldwide level of U.S. immigrant admissions, otherwise known as per-country limits. Because of numerical and per-country limits, and because in some preference categories there are more petitions each year than visas available, some individuals must wait a significant period of time to apply for adjustment of status (in the U.S.) or an immigrant visa (abroad) even after the employer's petition is approved by USCIS.

As of September 2016, most preference categories were current for most countries, meaning that visas are available as petitions are received. However, for some employment-based preference categories, there are backlogs for petitions for individuals born in certain countries with high annual levels, such as India, China, Mexico, and the Philippines.

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Employment-Based Visa Categories in the United States

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One of the key principles guiding the U.S. immigration system has been admitting foreign workers with skills that are valuable to the U.S. economy. Current U.S. immigration law provides several paths for foreign workers to enter the United States for employment purposes on a temporary or permanent basis.

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H-2A Agricultural Worker Visas, Approved List of Countries

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H-2A Agricultural Worker Visas, Approved List of Countries

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"Generally, USCIS may grant H-2A classification for up to the period of time authorized on the temporary labor certification and may be extended in increments of up to 1 year each.  A new certification must accompany each extension request.  The maximum period of stay is 3 years."

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To qualify for H-2A nonimmigrant classification, the petitioner must:

Offer a job that is of a temporary or seasonal nature.

Demonstrate that there are not enough U.S. workers who are able, willing, qualified, and available to do the temporary work.

Show that employing H-2A workers will not adversely affect the wages and working conditions of similarly employed U.S. workers.

Generally, submit a single valid temporary labor certification from the U.S. Department of Labor with the H-2A petition. (A limited exception to this requirement exists in certain "emergent circumstances." See e.g., 8 CFR 214.2(h)(5)(x) for specific details.)

Step 1: Petitioner submits temporary labor certification application to the U.S. Department of Labor (DOL). Before requesting H-2A classification from USCIS, the petitioner must apply for and receive a temporary labor certification for H-2A workers from DOL. For further information regarding the temporary labor certification requirements and process, see the Foreign Labor Certification, Department of Labor Web page.

Step 2: Petitioner submits Form I-129 to USCIS. After receiving a temporary labor certification for H-2A employment from DOL, the petitioner must file Form I-129 with USCIS. With limited exceptions, the petitioner must submit original temporary labor certification as initial evidence with Form I-129. (See the instructions to Form I-129 for additional filing requirements.)

Step 3: Prospective workers outside the United States apply for visa and/or admission. After USCIS approves Form I-129, prospective H-2A workers who are outside the United States must:

Apply for an H-2A visa with the U.S. Department of State (DOS) at a U.S. Embassy or Consulate abroad and then seek admission to the United States with U.S. Customs and Border Protection (CBP) at a U.S. port of entry; or

Directly seek admission to the United States in H-2A classification with CBP at a U.S. port of entry, if a worker does not require a visa in cases where an H-2A visa is not required.

Except as noted below, H-2A petitions may only be approved for nationals of countries that the Secretary of Homeland Security (DHS) has designated, with the concurrence of the Secretary of State, as eligible to participate in the H-2A program.

The Department of Homeland Security publishes the list of H-2A and H-2B eligible countries in a Federal Register notice. Designation of eligible countries is valid for one year from publication.

Effective Jan. 18, 2018, nationals from the following countries are eligible to participate in the H-2A program:

* With respect to all references to "country" or "countries" in this document, it should be noted that the Taiwan Relations Act of 1979, Pub. L. No. 96-8, Section 4(b)(1), provides that "[w]henever the laws of the United States refer or relate to foreign countries, nations, states, governments, or similar entities, such terms shall include and such laws shall apply with respect to Taiwan." 22 U.S.C. § 3303(b)(1). Accordingly, all references to "country" or "countries" in the regulations governing whether nationals of a country are eligible for H-2 program participation, 8 CFR 214.2(h)(5)(i)(F)(1)(i) and 8 CFR 214.2(h)(6)(i)(E)(1), are read to include Taiwan. This is consistent with the United States' one-China policy, under which the United States has maintained unofficial relations with Taiwan since 1979.

The Secretary of Homeland Security may consider adding a country to the Eligible Country List upon receiving a recommendation from DOS or a written request from an unlisted foreign government, an employer that would like to hire nationals of an unlisted country in H-2A status, or another interested party or parties. When designating countries to include on the list, the Secretary of Homeland Security, with the concurrence of the Secretary of State, will take into account factors including, but not limited to:

The country's cooperation with issuing travel documents for citizens, subjects, nationals and residents of that country who are subject to a final order of removal;

The number of final and unexecuted (meaning completed but not yet carried out) orders of removal against citizens, subjects, nationals and residents of that country;

The number of orders of removal executed against citizens, subjects, nationals and residents of that country; and

Other factors as may serve the U.S. interest. (See 8 CFR 214.2(h)(5)(i)(F)(1)(i) and 8 CFR 214.2(h)(6)(i)(E)(1)).

If you want DHS to consider adding a country to the Eligible Country List, send a written request to DHS's Office of Policy, or DOS at a U.S. embassy or consulate. Country listings are valid for one year. DHS may add a country to the Eligible Country List at any time if the Secretary of Homeland Security determines that the country is eligible.
A national from a country not on the list may only be the beneficiary of an approved H-2A petition if the Secretary of Homeland Security determines that it is in the U.S. interest for him or her to be the beneficiary of such a petition. (See 8 CFR 214.2(h)(2)(iii) and 8 CFR 214.2(h)(5)(i)(F)(1)(ii) for additional evidentiary requirements.)

Note: If you request H-2A workers from both eligible and non-eligible countries, USCIS suggests that you file two separate petitions. Filing one petition for workers from eligible countries and a separate petition for workers from non-eligible countries may help decrease delays in completing processing of your request for H-2A workers.

Generally, USCIS may grant H-2A classification for up to the period of time authorized on the temporary labor certification. H-2A classification may be extended for qualifying employment in increments of up to 1 year each. A new, valid temporary labor certification covering the requested time must accompany each extension request. The maximum period of stay in H-2A classification is 3 years.

A person who has held H-2A nonimmigrant status for a total of 3 years must depart and remain outside the United States for an uninterrupted period of 3 months before seeking readmission as an H-2A nonimmigrant. Additionally, previous time spent in other H or L classifications counts toward total H-2A time.

Exception: Certain periods of time spent outside of the United States may "interrupt" an H-2A worker's authorized stay and not count toward the 3-year limit. See the Calculating Interrupted Stay for H-2 Classifications Web page for additional information.

An H-2A worker's spouse and unmarried children under 21 years of age may seek admission in H-4 nonimmigrant classification. Family members are not eligible for employment in the United States while in H-4 status.

Petitioners of H-2A workers must notify USCIS within 2 workdays if any of the following occur:

No show: The H-2A worker fails to report to work within 5 work days of the latter of:

The employment start date on the H-2A petition, or

The start date established by the employer;

Abscondment: The H-2A worker leaves without notice and fails to report for work for 5 consecutive workdays without the consent of the employer;

Termination: The H-2A worker is terminated before completing of the H-2A labor or services for which he or she was hired; or

Early Completion: The H-2A worker finishes the labor or services for which he or she was hired more than 30 days earlier than the date specified in the H-2A petition.

Petitioners must include the following information on the employment-related notification:

The reason for the notification (for example, explain that the worker was either a "no show," "absconder," "termination," or "early completion");

The reason for untimely notification and evidence for good cause, if applicable;

The USCIS receipt number of the approved H-2A petition;

The petitioner's information, including:

Name

Address

Phone number

Employer identification number (EIN)

The employer's information (if different from that of the petitioner):

The H-2A worker's information:

Full Name

Date of birth

Place of birth

Last known physical address and phone number

Additionally, to help USCIS identify the H-2A worker, submit the following for each H-2A worker, if available:

Social Security number

Visa number

Failure to Notify USCIS: A petitioner who fails to comply with these employment notification requirements, or fails to demonstrate good cause for untimely notification, may be required to pay $10 in liquidated damages for each instance of noncompliance.

Note: USCIS defers to DOL's definition of "workday." According to the Fair Labor Standards Act (FLSA), this generally means the period of time on any particular day when an employee begins and ends his or her "principal activities."

How do I notify USCIS?

Email or mail your notification to the California Service Center at the following addresses. Although not required, email notification is strongly recommended to ensure timely notification.
California Service Center

By email: CSC-X.H-2AAbs@dhs.gov

By mail:

California Service Center
Attn: Div X/BCU ACD
P.O. Box 30050
Laguna Niguel, CA 92607-3004

A petitioner, agent, facilitator, recruiter, or similar employment service is prohibited from collecting a job placement fee or other compensation (either direct or indirect) at any time from an H-2A worker as a condition of employment.

Petitioners are provided with the opportunity to avoid denial or revocation (on notice) of their H-2A petition if they notify USCIS that they obtained information concerning the beneficiary's payment of (or agreement to pay) a prohibited fee or compensation to any agent, facilitator, recruiter, or similar employment service only after they filed their H-2A petition. This narrow exception does not apply, however, where a petitioner knew or should have known at the time of filing of its H-2A petition that the prospective worker had paid (or agreed to pay) such recruitment-related fees to any such persons or entities.

Petitioners must notify USCIS of an H-2A worker's payment of or agreement to pay prohibited fees to a recruiter, facilitator or similar employment service within 2 workdays of gaining knowledge of such payment or agreement.

Petitioners must include the following information in their fee-related notification:

The reason for the notification;

The USCIS receipt number of the approved H-2A petition;

The petitioner's information:

The employer's information (if different from that of the petitioner):

Information about the recruiter, facilitator, or placement service to which the beneficiaries paid (or agreed to pay) the prohibited fee:

How do I notify USCIS?

Email or mail your notification to the California Service Center at the following addresses. Although not required, email notification is strongly recommended to ensure timely notification. ( OMB Control Number 1615-0107)
California Service Center

By email: CSC.H2AFee@dhs.gov

By mail:

California Service Center
Attn: H-2A Fee
P.O. Box 10695
Laguna Niguel, CA 92607-1095

USCIS provides expedited processing of Form I-129 for H-2A petitions. You can check the status of your case using Case Status Online. If your petition has been pending for more than 15 days and we have not sent you a decision or request for more evidence, you may call the USCIS Contact Center at 800-375-5283 to ask about the status of your case.

Note: We can only provide case-specific information to authorized individuals (for example, petitioners and attorneys of record). For H-2A petitions, the petitioner is the petitioning individual or company. We cannot provide case-specific information to unauthorized third parties, such as the beneficiary (the temporary worker).

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To qualify for H-2A nonimmigrant classification, the petitioner must: Offer a job that is of a temporary or seasonal nature. Demonstrate that there are not enough U.S. workers who are able, willing, qualified, and available to do the temporary work. Show that employing H-2A workers will not adversely affect the wages and working conditions of similarly employed U.S.

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H-2B Nonimmigrant Visa Cap & Restrictions

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H-2B Nonimmigrant Visa Cap & Restrictions

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"Generally, workers in the United States in H-2B status who extend their stay, change employers, or change the terms and conditions of employment will not be subject to the cap."

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The H-2B Program

The H-2B non-agricultural temporary worker program allows U.S. employers to bring foreign nationals to the United States to fill temporary non-agricultural jobs.

For more information about the H-2B program, see H-2B Non-Agricultural Workers

What is the H-2B Cap?

There is a statutory numerical limit, or "cap," on the total number of foreign nationals who may be issued an H-2B visa or otherwise granted H-2B status during a fiscal year (FY). Currently, Congress has set the H-2B cap at 66,000 per fiscal year, with 33,000 for workers who begin employment in the first half of the fiscal year (October 1 - March 31) and 33,000 for workers who begin employment in the second half of the fiscal year (April 1 - September 30). Any unused numbers from the first half of the fiscal year will be available for employers seeking to hire H-2B workers during the second half of the fiscal year. However, unused H-2B numbers from one fiscal year do not carry over into the next.

Reporting H-2B Fraud

To report that a participating employer may be abusing the H-2B program, please email us at ReportH2BAbuse@uscis.dhs.gov. Your email should include information identifying the H-2B petitioning employer and relevant information that leads you to believe that the H-2B petitioning employer is abusing the H-2B program.

Workers Who Are Exempt from the H-2B Cap

Generally, workers in the United States in H-2B status who extend their stay, change employers, or change the terms and conditions of employment will not be subject to the cap. Similarly, H-2B workers who have previously been counted against the cap in the same fiscal year that the proposed employment begins will not be subject to the cap if the employer names the workers on the petition and indicates that they have already been counted. The spouse and children of H-2B workers classified as H-4 nonimmigrants are also not counted against this cap.

Additionally, petitions for the following types of workers are exempt from the H-2B cap:

Fish roe processors, fish roe technicians or supervisors of fish roe processing;

Workers performing labor or services in the Commonwealth of Northern Mariana Islands or Guam from November 28, 2009, until December 31, 2029.

Once the H-2B cap is reached, USCIS may only accept petitions for H-2B workers who are exempt or not subject to the H-2B cap.

Fiscal Year 2019 H-2B Cap Count

On Dec. 6, 2018, USCIS received a sufficient number of petitions to reach the congressionally mandated H-2B cap for the first half of FY 2019. Dec. 6, 2018 was the "final receipt date" for new cap-subject H-2B worker petitions requesting employment start dates before April 1, 2019. The "final receipt date" is the date on which USCIS determines that it has received enough cap-subject petitions to reach the limit of 33,000 H-2B workers for the first half of FY2019.

USCIS also announced that the number of beneficiaries USCIS had received petitions for surpassed the total number of H-2B visas available for the H-2B cap for the first half of FY 2019. In accordance with regulations, USCIS determined it was necessary to use a computer-generated process, commonly known as a lottery, to ensure the fair and orderly allocation of H-2B visa numbers to meet, but not exceed, the cap for the first half of FY 2019. On Dec. 11, 2018, USCIS conducted a lottery to randomly select the petitions received on Dec. 6. As a result, USCIS assigned all petitions selected in the lottery the receipt date of Dec. 11. Premium processing service for petitions selected in the lottery also began on that date.

1 Refers to the total number of beneficiaries of approved or pending petitions filed with USCIS that could potentially be counted towards the H-2B cap. This number typically will exceed the actual cap to allow for withdrawals, denials, and approvals for which no visa is issued.

2 If the cap is not reached for the first half of the fiscal year, USCIS will make those unused numbers available for use during the second half of the fiscal year.

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The H-2B non-agricultural temporary worker program allows U.S. employers to bring foreign nationals to the United States to fill temporary non-agricultural jobs. For more information about the H-2B program, see H-2B Non-Agricultural Workers There is a statutory numerical limit, or "cap," on the total number of foreign nationals who may be issued an H-2B visa or otherwise granted H-2B status during a fiscal year (FY).