History of the H-2 Program

“One of our democracy’s strongest traits is that it is capable of accepting large numbers of people from foreign lands, absorbing their different cultural characteristics, and becoming a richer nation during the process of assimilation. Immigration is at once both a test of American democratic values and a reaffirmation of our democratic resilience.”

‍
- Senator Alan K. Simpson, The Immigration Reform and Control Act: Immigration Policy and the National Interest

The Immigration and Nationality Act of 1952

In 1952, the Immigration and Nationality Act (McCarran-Walter Act), also known as the INA, became part of the United States Code (U.S.C). This act served as an amendment to the initial Immigration Act of 1924 (Johnson-Reed Act) which was severely limiting the amount of visas granting citizenship into the United States based on the National Origins Formula. This formula determined the quota for visas that were allocated to each nation based on the current population of those nationalities within the United States.

The 1952 act upheld the national origins quota, which, while still restricting, included previously excluded nations from immigrating to the U.S and introduced preferences for immigrants based on skill sets rather than a literacy test. While still imperfect, the amendment to the original 1924 act brought forth other positive changes such as the creation of a system of preferences which helped American consuls prioritize visa applicants in nations with heavier quotas of visas by way of placing precedence for individuals with special skills or families already in the U.S and created the labor certification system which was designed to prevent new immigrants from becoming unwanted competition for American laborers, thus becoming the genesis of the H-2 program.

Bracero Program and the Mexican Farm Labor Agreement

The Bracero Program was brought forth by an executive order called the Mexican Farm Labor Agreement in WWII which brought in unskilled labor for farm and railroad work from Mexico from 1942-1964. The Bracero Program gave employment to 5 million Mexican workers in 24 states making it, at the time, the largest foreign worker program in US history. This program did not come without its faults. Even though the US and Mexico brought forth protocols that would protect these workers from discrimination and poor wages, the issues which they sought to prevent came to fruition with these workers experiencing surcharges for housing, deducted pay, and exposure to unsafe working conditions. Through its 22 year tenure, the workers within the Bracero Program dealt with harassment, inhumane entry processes and examinations, and deplorable living and working conditions.

The overwhelming amount of undocumented migrants in the US led the US to launch several militant operations to remove Mexican immigrants (even some American citizens), and forcefully send them to Mexico which created fissures within the foundation of Mexico-US relations. The Bracero Program concluded in December of 1964 to be replaced fully by the H-2 program.

The Immigration and Nationality Act of 1965

1965 brought forth another important amendment to the INA at the height of the civil rights movement to abolish the National Origins Formula. This formula heavily favored immigration from Western and Northern Europe and often excluded Eastern Europe as well as Asia. The 1965 act was signed into effect on October 3rd, 1965, and with it brought a huge change in the demographic in the U.S and imposed the first cap on total immigration from the America’s, marking our first numerical limitation on Latin American Countries.

In the years following this act, thousands of nurses entered the US to work and family reunification greatly increased the number of immigrants in the country, doubling the total immigration numbers between 1965-1970 which continued to rise in the decades after. However, this reform did lead to negative side effects. Introducing numeric limits on immigration combined with the strong demand for immigrant labor led to rising numbers of undocumented immigrants after 1965 which ultimately led many of those to settle in the US permanently. Anti-immigrant activism became extremely prevalent in the 1980’s which led to greater border militarization and a media focus on the criminality of undocumented immigrants.

Immigration Reform and Control Act of 1986

Also known as the Simpson-Mazzoli Act or Reagan Amnesty, this was signed by Ronald Reagan in 1986. This act made it unlawful for US employers to hire undocumented immigrants or workers who are unauthorized to work in the US, but offered legalization and prospective naturalization to undocumented migrants already in the United States. An approximated 3 million individuals gained legal status through this act. However, it did fail to curb illegal immigration as intended, with the number of illegal immigrants soaring from 5 million in 1986 to 11.1 million in 2013 even with a greater emphasis on border patrol in higher population areas of Mexico.

In terms of labor, this act further pushed reliance on guest worker programs as a source of foreign labor while also granting higher budgets for Border Patrol and Department of Labor. Creating better processes for foreign labor certification. The sanctions imposed on employers were not as heavily enforced as intended. There was little governmental oversight and enforcement on the part of employers to ensure all employees obtained legal status (what we know as E-Verify).

While many of the good intentioned laws fell short in the IRCA, this also led to the redefinition of the H-2 programs by splitting them into two: The H-2A and H-2B programs.

The Split of the H-2 Program

The H-2 programs were introduced in the Immigration and Nationality Act to provide temporary and seasonal labor to U.S employers for both agricultural and non-agricultural work. Before these programs were split into what we know today as the H-2A and H-2B visas in 1986 after the Immigration Reform and Control Act came into play, there was only a singular H-2 visa which brought in around 30,000 workers. A majority of which were farm workers.

The goal of the H-2 program was to meet the US’s demand for temporary and seasonal labor without adding to the country’s permanent population as well as provide better oversight to the influx of foreign workers in the country while protecting wages and working conditions.

H-2 Visas in Present Day

To reiterate, the purpose of the H-2 programs is heavily predicated in providing labor to jobs that are temporary and seasonal in nature while also giving opportunity to immigrant populations to find work in the U.S legally. According to the Migration Policy Institute, “The Mexican unauthorized immigrant population has been shrinking for more than a decade, falling about 32 percent from its 7.7 million peak just before the 2008-09 Great Recession. MPI estimates that the Mexican unauthorized immigrant population declined by roughly 200,000 people between 2019 and 2021, from 5.4 million to 5.2 million…It is also likely that as more Mexican migrants are utilizing lawful pathways to come to the United States, including the H-2A visa for seasonal agricultural work, fewer may be inclined to migrate irregularly.”

Seasonal and temporary jobs have been typically very difficult to hire from in terms of the US labor market, as most are looking for permanent employment as opposed to something seasonal. On the more dire side of the argument, the unemployment rate shows specifically the hiring struggle happening with the United States. According to the Bureau of Labor Statistics, the unemployment rate is currently sitting at 3.8% as of March 2024 which directly equates to 6.4 million unemployed people.

We are close to the unemployment rate we were previously at prior to the COVID-19 pandemic, where the unemployment rate hit 8.05% (2020) from the 3.67% unemployment rate we saw in 2019, however, the struggle to hire a reliable workforce has become a treacherous mountain to climb, threatening to force small businesses into closing their doors for good.

Current data available shows that there are 9.5 million job openings, but only 6.5 million unemployed workers, so even if every unemployed person were to find a job, there would still be 2.4 million job openings to fill, and with a labor force participation rate at 62.5%, the likelihood of those positions becoming even remotely close to filled is slim.

According to a letter submitted to Secretary of Homeland Security Mayorkas and Secretary of Labor Su in November of 2023 from the H-2B Workforce Coalition, ‘Every H-2B worker supports 4.64 U.S jobs. Furthermore, a 2020 General Accountability Office report concluded that “counties with H-2B employers generally had lower unemployment rates and higher average weekly wages than counties that do not have any H-2B employers.’”

In 2022, there were 836,612 visas allocated between the H-2A and H-2B visa programs according to the DHS yearbook of immigration statistics to help fill the unemployment gap within the United States. It is evident to see that H-2 admissions are increasing every single year regardless of the unemployment rate due mostly to the participation rate of the US labor market.

Congressionally, there are numerous efforts each and every year to make the H-2 programs more accessible to small employers which include farmers to landscapers, construction companies to seafood processors, and manufacturers to hotels and restaurants.

Some of the biggest efforts are geared towards increasing the H-2B cap count which has been grossly limited in the amount of visas allocated compared to the amount of visas asked for each year, resulting in randomized lotteries for applications seeking workers within this program and shaky foundations moving into a businesses’ busy season due to the unreliability of this program in regards to the cap.

We are consistently partnering with lobbying groups and coalitions to help shift the H-2B program to the benefit of the employer. If you want to become part of these efforts, reach out to us to see how you can become involved.

Cites:

https://www.uscis.gov/laws-and-policy/legislation/immigration-and-nationality-act

https://history.state.gov/milestones/1921-1936/immigration-act

https://history.state.gov/milestones/1945-1952/immigration-act

https://en.wikipedia.org/wiki/Immigration_and_Nationality_Act_of_1965#Wages_under_Foreign_Certification

https://guides.loc.gov/latinx-civil-rights/bracero-program

https://bipartisanpolicy.org/explainer/primer-h2a-visa/#:~:text=The%20Immigration%20and%20Nationality%20Act,back%20to%20the%20Reagan%20administration.

https://guides.loc.gov/latinx-civil-rights/irca

https://en.wikipedia.org/wiki/Immigration_Reform_and_Control_Act_of_1986

https://www.dhs.gov/sites/default/files/2024-02/2023_0818_plcy_yearbook_immigration_statistics_fy2022.pdf

https://www.uscis.gov/sites/default/files/document/foia/H-2BVisas-Bray.pdf

https://www.aei.org/research-products/working-paper/immigration-and-american-jobs/

https://www.uschamber.com/workforce/understanding-americas-labor-shortage

‍