There seems to be shockingly little written on the history of temporary labor visas in the U.S., (with the exception of the bracero program, which began during WWII, and was separate from the temporary labor categories of nonimmigrants created in the 1950s.)
As far as I can piece together, the basic history is as follows: (and here I am drawing heavily on Lowell, 2000 and 2001, and Briggs, 1988.)
1917: The Immigration Act gave the Secretary of Labor the power to waive exclusion prohibitions (like the literacy test,) for those in the Western Hemisphere to be admitted as temporary workers. This power was invoked during WWI, mainly for Mexican workers in the Southwest, and operated through 1921.
1942: In response to WWII and labor shortages, Congress authorized the Mexican Labor Program, popularly known as the Bracero program. The first program officially ran through 1947, though it was informally extended through 1951. The program was then officially revived, and operated through 1964. (Unlike the 1917 provisions , the bracero program was never a part of permanent immigration law.)
1952: Congress creates a class of non-immigrant visas under the Immigration and Nationality Act (Sec. 101(a)(15)(H). At the time, three groups, all of whom were required to be intending to return to their home country, could qualify under the new "H" visa:
i. Those of exceptional merit and ability coming to perform temporary services "of an exceptional nature"
ii. Those coming to fill temporary positions, if such labor cannot be found in the U.S.
iii. Industrial Trainees.
1965: The major postwar reforms to immigration law, which ended the national origins quota system, did not touch on the system of temporary visas.
1970: Congress abolishes the double-temporary provision of the "H" visas, allowing temporary labor immigrants to fill permanent positions. Admission is still contingent on intention to return to the home country.
1980s: Temporary labor programs (specifically the H-2 visas) form a major part of the debate over the passage of immigration reform, culminating in the passage of the Immigration Reform and Control Act of 1986 (IRCA). According to Briggs (1988), while the final bill contained an amnesty provision, instead of new and/or expanded temporary labor programs (as had been proposed in earlier versions of the Act,) it did create the H-2A category to help facilitate the entry of agricultural labor.
1989: Congress creates the H-1A category for foreign registered nurses under the Immigration Nursing Relief Act, which runs through 1995.
1990: Congress further defines the H-1B category and establishes a cap of 65,000 visas per year, while also requiring employers to certify that they would meet labor standards.
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The kicker for me is that legislators placed the original temporary labor visas (101(a)(15)(H)) in the 1952 Act with almost no discussion of possible ramifications. They did not revisit the issue at all in 1965, even as they limited permanent labor migration to only 20% of all Legal Permanent Resident (green card) visas. In my mind, this shift in 1965 to a system of heavy emphasis on family reunification (74% of all LPR visas,) with far less for labor, coupled with the stringent labor certifications put in place in 1965, and strengthened in 1976 (*), all but ensured that the bulk of the foreign labor force would arrive through temporary labor categories. (Temporary work visas remain controversial, especially as comprehensive reform again enters the realm of political possibility. See, for example, Papademetriou et al., 2009) Yet as Lowell illustrates, H-1's were barely utilized before the late 1980s, and only rose above the 60,000 p/y mark after 1995. Similarly, Briggs's figures show that from 1971 through 1984, no more than 22,000 H-2s were certified by the Department of Labor for agricultural work in a given year, and no more than 13,000 for non-agricultural work (with an average of far fewer numbers in both cases.)
Admittedly many of the changes in utilization of temporary labor categories stem from the passage of the Immigration Act of 1990, and Lowell points out that only after the H-1s became popular in the late 1980s, did Congress impose restrictions on its use. Likewise, with the rise of a more global labor market, different hiring practices, increased flexibility and portability of skills, and the IT boom, H-1s have become even more popular. Still, I think this situation is a good indicator of the unintended consequences of immigration reform - how a little known category at the time of creation later became one of the mainstays of immigration policy.
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(*) After 1965, immigrants applying for occupational preference categories (permanent visas) were required to obtain labor certification from the Department of Labor (DOL), attesting to the fact that there were not adequate laborers/professionals in the U.S., and that their admission would not adversely affect the American workforce or prevailing wages. Prior to 1965, labor migrants were excluded only upon certification of the DOL; after the change, every laborer required certification. At the end of 1965 the DOL published a Schedule A of occupations that could receive automatic certification, and a Schedule B of oversupplied occupations in the U.S., that could not receive certification.
At the time, only those entering under the 6th preference (skilled and unskilled workers entering in occupations underrepresented by U.S. workers,) and nonpreference applicants required a job-in-hand prior to immigration; 3rd preference workers (Professionals and highly skilled workers) were exempt from this provision. Additionally, the DOL decided labor certifications on the basis of the economic situation of the U.S. as a whole - i.e. what occupations were needed / not needed across the country.
In response to economic downturns, in 1976 Congress first passed the Eilberg Act, which required that all labor migrants have a job-in-hand prior to immigration, and also changed the requirements for labor certification. Now the DOL certified labor migrants on the basis of conditions and availability of U.S. labor at the workplace (i.e. micro-level,) rather than across the country (macro-level). Second, they passed the Health Professions Educational Assistance Act, which removed physicians and surgeons from the DOL Schedule A, and required all but those attending US or Canadian medical schools to pass the Medical Boards prior to entrance. (See: Yochum and Agarwal, 1988.)
(Schedule B was abolished in 2005 with the creation of the Program Electronic Review Management (PERM) system for labor certification.)
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Sources:
Vernon M. Briggs, Jr., "The "Albatross" of Immigration Reform: Temporary Worker Policy in the United States," International Migration Review, Vol. 20, No. 4 (Winter, 1986).
B. Lindsay Lowell, "The Foreign Temporary (H-1B) Workforce and Shortages in Information Technology" in Wayne Cornelius (ed.), The International Migration of the Highly Skilled: Demand, Supply, and Development Consequences in Sending and Receiving Countries. San Diego: University of California, 2001.
----. "H-1B Temporary Workers: Estimating the Population." UC San Diego: Center for Comparative Immigration Studies, Working Paper No. 12, May 2000.
Demetrious G. Papademetriou, Doris Meissner, Marc R. Rosenblum, and Madeleline Sumption, “Aligning Temporary Immigration Visas with US Labor Market Needs: The Case for a New System of Provisional Visas.” Migration Policy Institute, July 2009.
Gilbert Yochum and Vinod Agarwal, "Permanent Labor Certifications for Alien Professionals, 1975-1982." International Migration Review Vol. 22, No. 2 (Summer 1988).
Monday, December 21, 2009
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