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Nonimmigrant Admissions

The Commission believes that both permanent and temporary (nonimmigrant) admissions must be considered together as part of an integrated immigration system.

Criteria governing access to skill-based nonimmigrant workers differ in kind from those applicable to permanent skill-based immigrants. Within the nonimmigrant categories themselves, a succession of legislative and administrative actions have evolved varying criteria among the individual visa programs. Moreover, the number of these "alphabet" nonimmigrant visa programs has expanded greatly,

and now exceeds forty. Many observers agree that the time for

a major overhaul of the nonimmigrant visa system is overdue.

Current nonimmigrant visa categories and applicable criteria involved include:

D Visa (foreign crewmen). An employer can seek certification for a foreign crewman to do longshore work by filing an attestation with DOL that it has notified the union or workers of the filing, there is no strike or lockout, and it is the prevailing practice at the U.S. port in question for alien crewmembers to do such work.

E Visa (treaty traders and investors). Applicants who apply

at U.S. consular posts are not required to establish intent to

enter the U.S. temporarily for a specified period of time. E visas usually are issued for five years. There is no labor market test requirement. About 140,000 E visa holders were admitted in

FY 1994.¹⁸

The Commission believes that both permanent and temporary (nonimmigrant) admissions must be considered together as part of an integrated immigration

system.

¹⁸All FY 1994 numbers are preliminary.

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F Visa (foreign students). F visas are issued by U.S. consular posts on the basis of admission decisions by a school approved by the Attorney General after consultation with the Secretary of Education. Only these approved schools may issue a Form I-20 A-B certificate of eligibility that is required by the INS in order to issue an F visa. The student must be engaged in a full course of academic study. Programs that qualify as academic study include elementary school, academic high school, college, university, seminary, conservatory, or language training programs. (Vocational training students are issued an "M" visa, a separate visa with different requirements than the F visa [see below].)

In general, the visa is valid for the duration of the period a student is pursuing a full course of study or the time a student needs to complete the courses required of a certain program in the usual time it takes to complete that program. For example, the number of courses needed to complete law school in three years or a bachelor degree in four years would constitute a full course of study. There are no numerical limitation on F visas, and approximately 239,000 students were admitted in FY 1994.

In addition to authorizing foreign students to pursue a course of study, the F visa permits several types of employment, including on campus and curricular practical training that is an integral part of the student's curriculum. The on-campus employment may not displace a U.S. worker. Students with an F visa also may be authorized for a one-year period of post-completion of studies practical training. An eligible F-1 student may request off-campus employment work authorization based upon severe economic hardship caused by unforeseen circumstances beyond the student's control. Under a five-year pilot project beginning October 1, 1991, a foreign student also may receive work authorization upon submission of an employer attestation as to sixty days of active recruitment for the position and furnishing the

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student the same wages and working conditions as domestic workers similarly employed.

H Visas (temporary workers).

H-1A (Nonimmigrant Nurses). The H-1A program involves attestations by employers, authorized under the Immigration Nursing Relief Act of 1989. Nurses may be admitted under this program for an initial period not to exceed three years, which may be extended to a total period of admission of five years (or a total of six years in cases of extraordinary circumstances as determined by the Attorney General). Employers must file an attestation that the facility has not laid off any registered nurses within the last year, that the delivery of health care would be substantially disrupted without the services of alien nurses, that the prevailing wage or facility wage (whichever is higher) will be paid, that significant steps to recruit and retain U.S. nurses will be taken, that no strike or lockout has necessitated the hiring of foreign nurses, that a copy of the attestation would be available at the facility for inspection, and that the notice of the filing of the attestation had been sent to the appropriate union. Attestations are filed with the Employment and Training Administration [ETA] of the DOL. ETA must act on the attestation within thirty days of receipt. An administrative appeal is available if attestations are not accepted. The H-1A program is scheduled to expire,

or sunset, in September 1995. In FY 1994, approximately 6,100 nonimmigrants were admitted with H-1A visas.

H-1B (workers in specialty occupations). Up to 65,000 new H-1B workers may be admitted each year. Employers must file a labor condition application [LCA] with

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the Employment and Training Administration [ETA] in the DOL. The employer must promise to pay the alien no less than the higher of the prevailing wage or the actual wage paid by the employer to similarly employed U.S. workers. The LCA must also specify that the employer provides working conditions that do not affect U.S. workers adversely, that there is no strike or lockout at the time of filing, and that the union or workers have been notified of the intent to hire an alien. Efforts to recruit U.S. workers are not required. H-1B visas are valid for a period of thee years, renewable for a further three-year period. In FY 1994, about 106,000 nonimmgrants

under H-1B visas were admittted, including new visas and reentries.

H-2A (agricultural workers). Employers submit an application simultaneously to the State Employment Service Agency [SESA] and the regional ETA office. The employer must describe specifically the terms and conditions of employment, including free housing for all nonlocal workers, working conditions that are customary or are the prevailing practice in the area, and other conditions that generally are made available. The employer must offer the highest of the Fair Labor Standards Act minimum wage, state minimum wage, prevailing wage for the occupation in the area, or the Adverse Effect Wage Rate set for each state by DOL. An employer may offer piece rates, but these must guarantee earnings at the appropriate hourly wage rate and must be at the prevailing piece rate. Visas are issued for the period of the approved employer petition, plus a period of up to one week before and up to not more than ten days after the approved period. Individuals holding H-2A status for a total of three years may not be granted H-2A status

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again until they leave the country for at least six consecutive months. In FY 1994, approximately 13,000 workers were admitted with H-2A visas.

H-2B (nonagricultural workers). Employers file applications and job offers through the SESA, as in the other programs specifying prevailing wages and working conditions. The company must intend to employ the foreign nationals in positions for which the employer has a temporary need and for which qualified workers are unavailable. A labor certification is required from DOL certifying that the foreign national is not displacing a qualified unemployed U.S. worker in the region of proposed employment and that the proposed employment does not adversely affect the working conditions of U.S. workers who are similarly employed. H-2B visas are issued for a maximum period of stay of one year. There is an annual numerical limitation of 66,000 such visas, however, in FY 1994, only approximately 16,000 were issued for nonagricultural workers.

J-1 Visa (exchange visitors). Sponsors of U.S. Information Agency [USIA] designated Exchange-Visitor Programs issue a Certificate of Eligibility for each exchange visitor, who then applies to a U.S. consulate for a J-1 visa. The permissible length of stay varies depending upon category of exchange visitor and runs up to seven years for foreign medical graduates. Approximately 217,000 exchange visitors were admitted in FY 1994.

L Visa (intracompany transfers). Employers submit a petition

to INS for the transfer of managers, executives, or specialized-knowledge personnel. No temporary labor certification or labor condition application is required. Aliens may be admitted under L-1 status for a maximum initial period of three years with total

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period of stay a maximum of seven years for managers and executives and five years for specialized-knowledge personnel. Approximately 98,000 intracompany transferees were admitted in FY 1994.

M Visa (vocational students). Students with an M visa are prohibited from any employment except for "post-completion of studies practical training" of one month for every four months of study, not to exceed six months total. Such visas permit admission for a period of time necessary to complete the course of study, plus thirty days to depart.¹⁹

O Visa (aliens with extraordinary ability in sciences, arts, education, business, or athletics, and those assisting in athletic or artistic performances of an O visa alien). Petitions are filed with INS. Consultation with an appropriate peer group or labor organization concerning the nature of the proposed work and the alien's qualifications is required. Such visas permit a period of stay necessary for the event or events, with the initial period not to exceed three years. Approximately 6,500 visas were issued in FY 1994.

P Visa (internationally recognized entertainers and ath-

letes, artists or entertainers on exchange program or under

a culturally-unique program). In addition to a petition requirement, consultation with an appropriate labor organization

regarding the nature of the work and the alien's qualifications

is mandatory. The period of stay is limited to the time necessary for the specific competiton, event, or performance, but can be up to a total of ten years for individual athletes. Approximately 28,000 P visas were issued in FY 1994.

¹⁹Numbers for vocational students are not available.

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Q Visa (participant in international cultural exchange program). Requirements under the Q visa program include the alien being employed for a maximum of fifteen months in an international cultural exchange program designated by the Attorney General. The worker must be employed under the same wages and working conditions as domestic workers. Approximately 1,500 such workers were admitted in FY 1994.

R Visa (religious workers). There are no labor market tests for the R visa. Such workers are admitted for a period not to exceed five years. In FY 1994, approximately 6,000 R visa workers were admitted.

Special provisions of both the U.S.-Canada Free Trade Agreement [AFT] and the North American Free Trade Agreement [NAFTA] provide for a facilitated temporary entry of business persons, including business visitors, traders and investors, professionals, and intracompany transferees. Approximately 25,000 of these nonimmigrants were admitted in FY 1994.

The top five countries of citizenship of nonimmigrants admitted for temporary employment in FY 1994 (representing about 40 percent) ranked from high to low in the number admitted to the U.S. are: United Kingdom, Canada, Japan, Germany, France. All of these are members of the G-7, that is countries with the largest economies in the world. Workers in these countries receive wages comparable to those paid by U.S. employers. The next five countriesMexico, India, Russia, China, and the Philippineshave developing economies and or wage rates that are substantially lower than U.S. rates [see Chart 36].

The Commission believes that there are a number of areas in the nonimmigrant skill-based visa system that need to be addressed: relationship to permanent system; complexity; variety of labor mar

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Chart 36.

Leading Employment-Based Nonimmigrant Source Countries:

FY 1994

United Kingdom

Canada

Japan

Germany

France

Mexico

India

Russia

China

Philippines

Note: data are preliminary

Source: Immigration and Naturalization Service, Statistics Division

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ket tests; protection of U.S. workers against adverse effects of foreign workers; numerical limitations; duration of stay; change of status; and job contractors.

n Relationship to permanent system. The Commission recognizes the significant relationship between the nonimmigrant and the permanent skill-based immigration systems. A large number of individuals enter the U.S. on temporary work or student visas and then petition for permanent status during their "temporary" stay. For example, in 1994, of the 37,000-plus skill-based immigrants granted permanent status, more than 23,000 already were in the U.S. under temporary status and were adjusting to permanent status. The Commission plans to focus on such changes of status in order to understand if such changes are requested as a result of changing circumstances, as part of a strategy to obtain permanent residence, or because the petitioner's temporary status is a result of problems with the permanent immigration system. The Commission intends to examine this relationship with a view to better coordination of the two programs.

n Complexity. The proliferation in the number of non-

immigrant skill-based categories has created a hodgepodge of rules, criteria, forms, procedures, and complications. The Commission intends to examine all of these categories with a view towards consolidation and simplification.

n Labor market tests. The Commission intends to study closely the issue of labor market testing for nonimmigrant workers. Such testing need not be a time-consuming process nor necessarily a government function. The process must, however, be performed honestly and in good faith. The Commission will look at alternatives to the current system. Some suggested possibilities include: one labor market test for all tem

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porary workers, regardless of visa category; one test for employers seeking to fill demonstrated shortages and a second test for those seeking to hire particular individuals with specialized skills or knowledge; different labor market tests depending on skill levels of entering immigrants; and different labor market tests depending upon length of job. The Commission also will look at recruitment and advertising requirements as part of the labor market-testing process.

n Wages and working conditions. Few observers argue against the need to protect the wages and working conditions of domestic workers against potential detrimental effects of foreign workers in the same occupations. An examination will be made of prevailing wage rates and adverse effect wage rates. The Commission will look at the methods of determining such rates, the time frames involved, and the effects of such requirements on the employment of U.S. workers. The Commission also will examine layoff and strike/lockout protection and the mechanisms for enforcing all protections offered to U.S. workers.

n Numerical limitations. An examination will be made of the advantages and disadvantages of setting numerical limitations on the number of nonimmigrant skill-based admissions. The Commission recognizes that such limitations might reduce the flexibility of businesses in adapting to economic changes. On the other hand, reasonable limitations on the number of such visas issued could serve to protect domestic workers and reduce adverse impact.

n Duration of stay. Under the current system, temporary visas are issued for both temporary and permanent positions. The Commission will examine appropriate duration-of-stay limits under the various temporary visas.

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n Job contractors. The Commission has heard reports of the development of so-called "body shops," labor contractors whose entire workforces consist of nonimmigrant foreign workers and from which substantial potential for adverse effects on U.S. workers and competing businesses are derived. The Commission will look at this development and make any recommendations it concludes are necessary.

Although the Commission is deferring specific recommendations on most nonimmigrant issues until we have completed a comprehensive review, we do note two areas of particular interest.

n Temporary Workers and Foreign Students. The Commission intends to examine in depth the nonimmigrant

temporary worker and foreign student systems and their

relationships to permanent immigration. The temporary student and skill-based admissions system has become a conduit for permanent admissions. We cannot now say whether this connection is good or bad for the United States, but we will explore the issue and ways to simplify and achieve greater coordination in these systems and make recommendations as a result of this study.

A high percentage of applicants for permanent skill-based admission already are in this country on temporary work or student visas. A significant minority of individuals admitted for temporary study or work seek permanent jobs during their stay. Similarly, businesses that intend to petition for permanent visas for new hires frequently obtain temporary visas first because of long delays in processing. As noted above, these categories of temporary admission must be seen as integral parts of a cohesive legal immigration policy, and the Commission will address these specific issues in a later report. Implementation of the Commission's recommenda

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tions to expedite permanent admission applications should reduce employers' use of temporary visas to fill permanent positions while awaiting permanent visas.

n Agriculture Guestworker Program. The Commission believes that an agriculture guestworker program, sometimes referred to as revisiting the "bracero agreement," is not in the national interest and unanimously and strongly agrees that such a program would be a grievous mistake.

First, the Commission is highly skeptical of the need for an agricultural guestworker program at this time or in the near future. Proponents of such a program have failed to demonstrate that a labor shortage is about to occur or that there are no means other than a guestworker program available to agricultural producers to avert any such shortage. They assert that agricultural labor shortages will result from current initiatives to reduce the number of illegal aliens in the United States. However, in its 1992 report, the Commission on Agricultural Workers (CAW 1992), authorized by the Immigration Reform and Control Act, concluded that there is a general oversupply of farm labor nationwide. The Commission on Agricultural Workers recommended against any new supplementary foreign worker programs at that time.

The situation does not appear to have changed since the issuance of that Commission's report. Tabulations of unpublished data from the FY 1993-1994 DOL National Agricultural Worker Survey [NAWS] show that 75 percent of all farmworkers have work authorization (U.S. DOL unpublished). The survey also discloses that, even in primary harvest months, at most 61 percent of available U.S. farmworkers are employed in farm work. Viewed together, these two statistics indicate that there is an adequate supply of

The Commission believes that

an agriculture guestworker

program,

sometimes

referred to

as revisiting

the "bracero

agreement,"

is not in the

national interest and unanimously and strongly agrees that such a

program would be a grievous mistake.

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farmworkers in the United States; the 75 percent of farmworkers who have work authorization provide a sufficient supply of labor given that, even in period of high demand, at most, only 61 percent of farmworkers are employed in farm work. If the supply of illegal farmworkers dried up tomorrow (or if growers chose to stop hiring illegal workers), the supply of work-authorized farmworkers is ample, even in peak harvest months.

The FY 1993-1994 NAWS also found significant underemployment in U.S. agriculture. Even in the primary harvest months, at least 15 percent of farmworkers were not working at all. (An additional minimum of 23 percent of farmworkers were either abroad or engaged in U.S. nonfarm work.) In every region, an oversupply of workers was apparent. In the North, at any point in the year, at least 13 percent of locally available farmworkers were not employed; in California, 14 percent, and in the South, 20 percent.

Even if labor shortages develop, the Commission would be cautious about recommendations for a guestworker program to address them. Guestworker programs effectively expand rural poverty. Moreover, guestworker programs are predicated on limitations on the freedom of those who are invited to enter and work. Experience has shown that such limitations are incompatible with the values of democratic societies worldwide. For that very reason, "temporary" guestworkers tend to become permanent residents, de facto or even de jure. We cannot ignore the inconsistency between the stated intent of guestworker programs and their actual consequences.

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