A guest worker is an individual from outside the United States who comes to the United States to work. To become a guest worker, the individual must apply for an employment visa. Once the application is granted, the worker can remain in the United States for a temporary period.
An employer typically sponsors the employment visa. The employer is the entity within the U.S. for whom the guest worker wishes to work. Once the employment visa has expired, the guest worker must generally return to their country of origin. Guest workers who fail to do this may face removal proceedings.
What Are Guest Worker Programs?
Under current federal law, there are several guest worker programs. These include the H-2A visa program for agricultural workers and the H-2B visa program for non-agricultural work. Individuals who obtain the H2-A visa may remain in the United States for no more than a year.
Additional guest worker programs include the H-1C registered nurse program and the D-1 Crewmembers program. The H1-C registered nurse program allows an individual to remain in the United States for three years.
Regardless of the program, a potential guest worker’s sponsor must submit documentation supporting the visa application. H-2A, H-2B, and H-1C visa eligibility have additional requirements.
Sponsors of applicants for these visas must certify the following to the United States Department of Labor:
- There are not enough U.S. workers who are able, willing, qualified, and available to do the temporary work; and
- Employing the guest worker will not adversely affect similarly employed U.S. workers’ wages and working conditions. “Similarly employed” U.S. workers are U.S. workers who perform similar duties and are subject to similar supervision. A similarly situated U.S. employee also has a similar educational background, employment expertise, industry expertise, level of responsibility, and skill sets.
A D-1 crewmember (D) visa is a nonimmigrant visa for persons working on board commercial sea vessels or international airlines in the United States. The visa holder provides services required for normal vessel or airline operations. D-1 visa applicants are subject to special requirements.
A D-1 applicant crewmember visa may only be used for entry to a U.S. port if the applicant is employed on the aircraft or sea vessel on which the applicant arrives. A D-1 visa holder must depart the United States on a vessel within 29 days. “The United States,” for this rule, includes the continental United States, Alaska, Hawaii, Puerto Rico, Guam, and the U.S. Virgin Islands. A visa holder is not considered to have departed the United States until the vessel they are on travels to international waters destined for a foreign port.
What Are Common Issues Involving Guest Worker Rights?
Eligibility for guest worker visas is limited. The H-1C visa is “capped” at 500. This means that USCIS will only issue 500 of these visas in a given fiscal year. In addition, each state is “capped” based on its population. States with smaller populations are “capped” at 25 visas per fiscal year. Larger states are “capped” at 50. While there is no current cap on H-2A visas, There is an annual cap of 66,000 visas available for H-2B workers.
There is no annual cap on visas for H-2A workers. However, concerning H-2A and H-2B visas, the employer must demonstrate the temporary need for the worker’s services. If an employer’s need for guest workers is ongoing or continuing, the H-2A or H-2B application will be denied.
Only applicants in certain countries may apply for guest worker visas—the U.S. The Department of State and the Department of Homeland Security determine what countries are eligible and ineligible for a given year. For a country to be eligible, it must meet the requirements for continued designation.
Reasons a country might be deemed ineligible include the country having committed fraud or abuse concerning the guest worker visa program. The country may be ineligible due to high denial rights or overstay rates. Countries with a human trafficking concern are typically ineligible to participate in the program.
USCIS may approve the H-2A or H-2B petition of an individual in an ineligible country. This approval process is performed on a case-by-case basis. Such individuals’ petitions will only be approved if approval is determined to be in the interest of the United States based on the evidence submitted in the petition.
The ability of a guest worker to remain in the United States is not guaranteed. Generally, a worker must work for the sponsoring employer during the employee’s entire length of stay in the U.S. This means that if the worker loses their job, is laid off, or the sponsoring company goes out of business, the worker may face removal proceedings.
While guest workers work in the United States, they may be subject to abusive conditions. These conditions may exist concerning wages, working hours, and work safety. Guest workers are also subject to employment discrimination.
The federal Occupational Safety and Health Administration (OSHA) has issued special regulations for the agricultural sector designed to ensure the safety of farm laborers working in environments with extreme heat. The state of California has developed its own heat illness prevention standard. This standard regulates working conditions in the agricultural sector, providing that workers be given periods of rest to “cool off” and requiring employers to ensure workers remain hydrated.
Employers of guest workers are also subject to federal employment laws relating to minimum wage, overtime, and employment discrimination. These laws are enforced by the United States Department of Labor (DOL), which administers the Fair Labor Standards Act (FLSA), a federal labor law. This law subjects guest worker employers to minimum wage and overtime pay requirements.
Under the FLSA, employers may not deduct certain expenses from guest worker pay if doing so would result in a wage lower than the law permits. Such expenses include those for tools or uniforms. Generally, under the FLSA, if employment performed by a citizen is subjected to minimum wage and overtime pay protections, immigrant workers performing the same work are entitled to the same minimum wage and overtime pay protections.
The DOL also enforces employment antidiscrimination statutes. Employers may not subject guest workers to workplace discrimination or harassment. Discrimination or harassment based on race, color, gender, national origin, and religion is prohibited. In addition, employers may not discriminate based on immigration statutes. This means immigrant workers cannot be subject to adverse employment decisions, like hiring and firing, simply because of their immigrant status.
Should I Hire A Lawyer For Help With Guest Worker Issues?
If you seek to immigrate to the U.S. on a guest worker basis, you should contact an immigration attorney in your area. An experienced immigration attorney can explain the visa application process. The attorney can assist you with the application paperwork.
The attorney can also explain your rights under the visa program. If you are an employer and seek to hire guest workers, an experienced immigration attorney can explain your rights as an employer. The attorney can assist you with the petition process.
Also, your lawyer will be able to update you regarding any changes to the laws that might affect your rights.
