Everything You Ever Wanted to Know About U.S. Temporary Labor Policy (1917-1990)

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).

The Importance of International Affairs in Immigration Policy, Part 2.

Continuing from my last post, today I’d like to talk about a series of documents prepared by Congressman Emanuel Celler’s office c.1954. Celler chaired the House Committee on the Judiciary, and these cases were prepared as part of testimony highlighting the extreme restrictiveness of the McCarran-Walter Act (Immigration and Naturalization Act of 1952.) Celler led the fight to replace the Act, culminating in 1965 with the passage of the Hart-Celler Act (Immigration and Naturalization Act.)

Celler’s staff most probably picked this series of cases for their representativeness as the most innocent victims of the immigration system they could find, those excluded from the country because of minor crimes in their past. Here are two examples:

(1) Anneliese Else Hermine Neumann, a German girl, stole two bags of coal while working in a railway coal yard in Berlin in Jan. 1947. In 1951 she married a Sergeant Ware, and applied for an immigrant visa. Her application was denied on the grounds that she had committed a “crime involving moral turpitude.”

“Sergeant Ware pleaded in behalf of his wife, stressing that in 1947, her father was still a British prisoner of war and her mother was incapacitated due to the fact that she had been wounded in both legs during the bombing of Berlin. There were at that time six younger children in the Neumann family, and the only reason Anneliese stole the coal was to keep the family warm.”
“There was no relief possible under the law, and Sergeant Ware had to resort to a private bill.”

(2) “Edith Ruth Smith (nee Kunick) married Sergeant Smith of the US Army in Germany in 1952. Their marriage had the prior approval of the American military authorities, but when it came to issuing an immigration visa to Mrs. Smith, it was discovered that Mrs. Smith, while 18 years old, committed “a crime involving moral turpitude”. Here are the facts as reflected in officials reports.”
“During an outing in 1948 in Stuttgart, Germany, Edith’s sister, 16 years old, climbed a walnut tree and while shaking the nuts from the tree, fell and fractured both arms. She was subsequently notified to appear at police headquarters for questioning. Edith, although not summoned, accompanied her sister because of the latter’s injuries. At police headquarters, both of them were charged with stealing walnuts from a tree, which was the property of the city of Stuttgart. The two girls paid a fine (roughly equivalent to 10 cents) but Edith Kunick, now Mrs. Paul William Smith, has been refused a visa.”

I find these cases extremely interesting. In both, the protagonists are wives of servicemen, whose husbands attempted to bring them over to the United States, only to find them excluded on a technicality. This admission of military brides had by this point already become a contentious topic in immigration policy, and I think it is telling that instead of using any other type of migrant (laborers, noncitizen military personnel, male immigrants from Europe, etc.,) Celler’s staff chose the spouses of servicemen. Whether this was simply to highlight the plight of “our boys overseas” who couldn’t bring in their wives, or whether it had more to do with the gendered nature of the migrants is unclear, but interesting nonetheless.

Each case references crimes committed in postwar West Germany, which seems to me to be as much of a criticism of the rule of law in West Germany (and the sorry state of its postwar society) as in the U.S. – i.e. although we refuse to allow these women in on technicalities, conditions in West Germany forced them to commit these petty crimes in the first place.

The case of Anneliese Neumann also states that Congress had to resort to a privately sponsored bill to admit her. The report implies that the McCarran-Walter Act not only discriminates unnecessarily, but also creates more work for Congress, since private bills are now required to correct its injustices.

Lastly, in the case of Edith Smith, the report goes out of its way to mention that the military had already approved the marriage, (which on policy they would do only if the spouse would be eligible to enter the U.S.,) while the consular officials, acting under the McCarran-Walter Act, denied them entry. This clash between military and civilian agencies, coming in the post-WWII and Korean War era seems to me a good way to draw on pro-military sentiment, especially overseas, to push for immigration reform. In this light this line of argument can be viewed as showing the superiority and inherent “rightness” of military authority over consular/legislative.

I’m not convinced, as Celler’s staff seemed to be, that these cases represent a failure of law rather than a failure in the interpretation of law, but the interplay between gender (military brides,) foreign diplomacy (U.S.-West German relations,) and the rule of law makes these cases an ideal window into the complexities of immigration policy after WWII, and an excellent find.