Agricultural Guest Workers: Legislative Activity in the 113th Congress

Andorra Bruno
Specialist in Immigration Policy

Foreign temporary workers, also known as guest workers, have long performed legal agricultural labor in the United States through different temporary worker programs. Today, agricultural guest workers may perform farm work of a temporary or seasonal nature through the H-2A visa program.

Bringing in H-2A workers is a multi-agency process involving the U.S. Department of Labor (DOL), the U.S. Department of Homeland Security (DHS), and the U.S. Department of State (DOS). As a first step, interested employers must apply to DOL for a certification that (1) there are not sufficient U.S. workers who are qualified and available to perform the work; and (2) the employment of foreign workers will not adversely affect the wages and working conditions of similarly employed U.S. workers. Among the H-2A labor certification requirements, employers must pay the highest of several wage rates and must provide workers with housing, transportation, and other benefits. The H-2A program is not subject to a numerical limit. Over the years, both growers and labor advocates have criticized the program. Growers complain that it is administratively cumbersome, expensive, and ineffective in meeting their labor needs. Labor advocates argue that the H-2A program provides too few protections for workers.

The House Judiciary Committee and the Senate have acted on separate bills that would establish new temporary agricultural worker visas to replace the H-2A visa. The House Judiciary Committee ordered reported the Agricultural Guest Worker Act (H.R. 1773) and the Senate passed the Border Security, Economic Opportunity, and Immigration Modernization Act (S. 744). While the new visa programs proposed in these bills are different, they share some similarities that distinguish them from the H-2A program. For example, unlike the H-2A visa, the new visas would not be limited to temporary or seasonal work, would not require prospective employers to apply to DOL for labor certification or to meet all existing certification requirements, and would provide for at-will employment by agricultural workers.

H.R. 1773 would establish an H-2C agricultural worker visa. After undertaking to recruit U.S. workers, a prospective H-2C employer would file a petition with the U.S. Department of Agriculture (USDA) containing attestations concerning U.S. worker recruitment, worker benefits and wages, and other issues. With respect to wages, an employer petitioning for H-2C workers would have to pay the greater of the prevailing wage rate or the applicable minimum wage. The H-2C program would have a numerical cap of 500,000, subject to adjustment by USDA.

S. 744, a comprehensive immigration reform bill that addresses a wide range of immigration issues, would create a W-3 visa for contract agricultural workers and a W-4 visa for at-will agricultural workers. A prospective W-3 or W-4 employer would have to engage in U.S. worker recruitment. To import a W-3 or W-4 worker, an employer would submit a petition to DHS containing specified attestations, including attestations about contracts, U.S. worker recruitment, and compliance with other employer requirements. Required wages would be defined based on six standard agricultural occupational classifications, with certain wages specified and others to be determined by USDA, in consultation with DOL. W-3 and W-4 visas would be capped initially at 112,333 total visas per year, with provisions for USDA, in consultation with DOL, to adjust these caps and to set visa limits for later years.


Date of Report: July 23, 2013
Number of Pages: 11
Order Number: R43161
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Comprehensive Immigration Reform in the 113th Congress: Major Provisions in Senate-Passed S. 744

Marc R. Rosenblum
Specialist in Immigration Policy

Ruth Ellen Wasem
Specialist in Immigration Policy

For several years, some Members of Congress have favored “comprehensive immigration reform” (CIR), a label that commonly refers to omnibus legislation that includes increased border security and immigration enforcement, expanded employment eligibility verification, revision of nonimmigrant visas and legal permanent immigration, and legalization for some unauthorized aliens residing in the country. The omnibus legislative approach contrasts with incremental revisions of the Immigration and Nationality Act (INA) that would address some but not all of these elements, and with sequential reforms that would tackle border security and interior enforcement provisions prior to revising legal immigration or enacting legalization pathways.

Leaders in both chambers have identified immigration as a legislative priority in the 113th Congress. While the House Committee on the Judiciary has ordered reported several distinct pieces of legislation that aim to reform immigration law thus far in the 113th Congress, the debate in the Senate has focused on a single CIR bill: the Border Security, Economic Opportunity, and Immigration Modernization Act (S. 744). This report summarizes major provisions of S. 744, which the Senate amended and passed by a yea-nay vote of 68-32 on June 27, 2013.

CRS’s analysis of S. 744 focuses on eight major policy areas that encompass the U.S. immigration debate: comprehensive reform “triggers” and funding; border security; interior enforcement; employment eligibility verification and worksite enforcement; legalization of unauthorized aliens; immigrant visas; nonimmigrant visas; and humanitarian provisions.

Among the border and enforcement-related provisions in Senate-passed S. 744 are a number of provisions aimed at strengthening border security, including increased border security personnel, equipment, and infrastructure. The bill would mandate new border security strategies and the development of new border metrics that would be designed to achieve “effective control” of the Southern border. Most notably, S. 744 would authorize $44.5 billion in spending for additional border patrol agents, border fencing, and an electronic exit system to collect machine readable data at air and sea ports of entry.

The legislation would also authorize $750 million for the U.S. Department of Homeland Security (DHS) to implement a mandatory electronic employment verification system to be used by all employers. Furthermore, S. 744 would amend the INA to create additional grounds of inadmissibility and deportability, while broadening judges’ discretion to waive some of these grounds. For certain immigration offenses, the bill would increase civil and misdemeanor penalties for first-time offenses and impose felony penalties when aggravating circumstances exist. The bill would amend INA provisions on unlawful reentry to increase criminal penalties. S. 744 would provide additional resources to immigration courts and would encourage alternatives to detention and strengthen detention standards and congressional oversight of immigrant detention. Special provisions would be included to protect children who are affected by immigration enforcement.

In turn, S. 744 would amend the INA to provide pathways for unauthorized aliens to adjust their immigration status to one of the proposed new statuses—“registered provisional immigrant” (RPI) status and “blue card” status—and ultimately legal permanent resident (LPR) status after specified border security and interior enforcement criteria are met. In addition to these legalization provisions, S. 744 would also accelerate the admission of an estimated 4 to 7 million foreign nationals who have pending petitions to become LPRs. S. 744 would substantially revise
the categories for the admission of LPRs, eliminating the category for siblings of U.S. citizens, shifting the allocation of the other family-based categories, permitting more categories of LPRs to enter without numerical limits, and increasing the number of employment-based LPRs. The Congressional Budget Office (CBO) projects that the changes to the legal immigration system would result in an increase of 9.6 million LPRs in the first decade after enactment.

Senate-passed S. 744 would revise and expand nonimmigrant (i.e., temporary immigration) programs for high- and low-skilled workers, as well as for tourists, students, and other nonimmigrants. The bill would increase the cap on professional specialty workers (H-1B workers), while also imposing new requirements on businesses that employ H-1B workers, as well as those that employ intra-company transferees (L visas). Reforms would be made to the existing H-2B visa for lower-skilled non-agricultural workers in temporary or seasonal employment, while the H-2A visa for agricultural workers would be phased out. New nonimmigrant visas (the proposed W visas) would be established for lower-skilled agricultural and non-agricultural workers that would be more flexible for employers, while also expanding certain rights for workers. Additional nonimmigrant visa changes would facilitate temporary immigration by doctors, investors, and aliens from certain countries with U.S. trade agreements; encourage tourism within the United States; and strengthen oversight of foreign students and summer-work study exchanges, among other changes.

An accompanying report, CRS Report R43099, Comprehensive Immigration Reform in the 113th Congress: Short Summary of Major Legislative Proposals, offers an overview of S. 744 as well.


Date of Report: July 9, 2013
Number of Pages: 64
Order Number: R43097
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U.S. Family-Based Immigration Policy

William A. Kandel
Analyst in Immigration Policy

Family reunification is a key principle underlying U.S. immigration policy. It is embodied in the Immigration and Nationality Act (INA), which specifies numerical limits for five family-based admission categories, as well as a per-country limit on total family-based admissions. The five categories include immediate relatives of U.S. citizens and four other family-based categories that vary according to individual characteristics such as the legal status of the petitioning U.S.-based relative, and the age, family relationship, and marital status of the prospective immigrant.

Of the 1.03 million foreign nationals admitted to the United States in FY2012 as lawful permanent residents (LPRs), 680,799, or 66%, were admitted on the basis of family ties. Of these family-based immigrants admitted in FY2012, 70% were admitted as immediate relatives of U.S. citizens. Many of the 1.03 million immigrants were initially admitted on a legal temporary basis and became immigrants by converting or “adjusting” their status to a lawful permanent resident. The proportion of family-based immigrants who adjusted their immigration status while residing in the United States (53%) exceeded that of family-based immigrants who had their immigration petitions processed while living abroad (47%), although such percentages varied considerably among the five family-based admission categories.

Since FY2000, increasing numbers of immediate relatives of U.S. citizens have accounted for all of the growth in family-based admissions. Between FY2000 and FY2009, immigrants who accompanied or later followed principal (qualifying) immigrants averaged 12% of all familybased admissions annually. During that period, Mexico, the Philippines, China, India, and the Dominican Republic sent the most family-based immigrants to the United States.

Each year, the number of foreign nationals petitioning for LPR status through family-sponsored preferences exceeds the supply of legal immigrant slots. As a result, a visa queue has accumulated of foreign nationals who qualify as immigrants under the INA but who must wait for a visa to immigrate to the United States. As such, the visa queue constitutes not a backlog of petitions to be processed but, rather, the number of persons approved for visas not yet available due to INAspecified numerical limits. As of November 2012, 4.3 million persons stood in the visa queue.

Every month, the Department of State (DOS) produces its Visa Bulletin, which lists “cut-off dates” for each of the four numerically limited family-based admissions categories. Cut-off dates indicate when petitions that are currently being processed for a numerically limited visa were initially approved. For most countries, the cut-off dates range between 2.5 years and 12 years ago. For countries that send the most immigrants, the range expands to between 2.5 and 23 years ago.

Current bipartisan interest in comprehensive immigration reform has increased scrutiny of family-based immigration and revived debate over its proportion of total lawful permanent admissions. Past or current proposals for overhauling family-based admissions have been made by numerous observers, including two congressionally mandated commissions.

Those who favor expanding the number of family-based admissions point to this sizable queue of prospective immigrants who have been approved for lawful permanent residence but must wait years separated from their U.S.-based family members until receiving a numerically limited immigrant visa. Their proposals generally emphasize expanding the numerical limits of familybased categories. Others question whether the United States has an obligation to reconstitute families of immigrants beyond their nuclear families. Corresponding proposals would eliminate several family-based preference categories, favoring only those for the immediate relatives of U.S. citizens and lawful permanent residents. Such proposals reiterate recommendations made by earlier congressionally mandated commissions on immigration reform.


Date of Report: July 11, 2013
Number of Pages: 38
Order Number: R43145
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Border Security: Immigration Enforcement Between Ports of Entry

Marc R. Rosenblum
Specialist in Immigration Policy

Border enforcement is a core element of the Department of Homeland Security’s (DHS’s) effort to control unauthorized migration, with the U.S. Border Patrol (USBP) within the Bureau of Customs and Border Protection (CBP) as the lead agency along most of the border. Border enforcement has been an ongoing subject of congressional interest since the 1970s, when illegal immigration to the United States first registered as a serious national problem; and border security has received additional attention in the years since the terrorist attacks of 2001.

Since the 1990s, migration control at the border has been guided by a strategy of “prevention through deterrence”—the idea that the concentration of personnel, infrastructure, and surveillance technology along heavily trafficked regions of the border will discourage unauthorized aliens from attempting to enter the United States. Since 2005, CBP has attempted to discourage repeat entries and disrupt migrant smuggling networks by imposing tougher penalties against certain unauthorized aliens, a set of policies eventually described as “enforcement with consequences.” Most people apprehended at the Southwest border are now subject to “high consequence” enforcement outcomes.

Across a variety of indicators, the United States has substantially expanded border enforcement resources over the last three decades. Particularly since 2001, such increases include border security appropriations, personnel, fencing and infrastructure, and surveillance technology. The Border Patrol collects data on several different border enforcement outcomes; and this report describes trends in border apprehensions, recidivism, and estimated got aways and turn backs. Yet none of these existing data are designed to measure illegal border flows or the degree to which the border is secured. Thus, the report also describes methods for estimating illegal border flows based on enforcement data and migrant surveys.

Drawing on multiple data sources, the report suggests conclusions about the state of border security. Robust investments at the border were not associated with reduced illegal inflows during the 1980s and 1990s, but a range of evidence suggests a substantial drop in illegal inflows in 2007-2011, followed by a slight rise in 2012. Enforcement, along with the economic downturn in the United States, likely contributed to the drop in unauthorized migration, though the precise share of the decline attributable to enforcement is unknown.

Enhanced border enforcement also may have contributed to a number of secondary costs and benefits. To the extent that border enforcement successfully deters illegal entries, such enforcement may reduce border-area violence and migrant deaths, protect fragile border ecosystems, and improve the quality of life in border communities. But to the extent that aliens are not deterred, the concentration of enforcement resources on the border may increase border area violence and migrant deaths, encourage unauthorized migrants to find new ways to enter illegally and to remain in the United States for longer periods of time, damage border ecosystems, harm border-area businesses and the quality of life in border communities, and strain U.S. relations with Mexico and Canada.


Date of Report: May 3, 2013
Number of Pages: 47
Order Number: R42138
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