H-1B, H-2A and H-2B, What Each Work Visa Does and Who Can Use It

Cable hosts say "guest worker" as though it were one program. So do a good many commentators who thunder about it, and a large share of the members of Congress who vote on it. Ask any of them to explain the difference between an H-1B, an H-2A and an H-2B, and watch the room find something fascinating on the ceiling.

It is three programs. They share a letter, a number and a Labor Department. They do not share a purpose, a cap, a wage rule or a constituency. Picture a hearing room with three witnesses: a software executive, a vegetable grower and a seafood processor. All three say they cannot find enough workers. All three want a visa. And all three will be shouted at by a different group of conservatives. The software executive will be shouted at by the people who think tech is using visas to undercut American graduates. The grower will be shouted at by the people who think any foreign worker is a step toward amnesty. The seafood processor will be shouted at by nobody, because nobody has heard of the program, and that is the program's whole problem.

So let us sort them out. Then I will tell you where conservatives disagree, because they do.

The table

A few notes on the table, because the cells compress a lot.

The H-1B cap has exceptions. Universities, nonprofit research organizations and organizations affiliated with a university are exempt from the cap, which is why a professor on an H-1B does not count toward the 65,000. When there are more petitions than cap numbers, the government selects among them by lottery. The H-2B cap has also been loosened at times by Congress through appropriations riders that exempt returning workers, which come and go, so check the current rule before you rely on it.

The H-2A wage rule is more complicated than I can show in a cell. The Labor Department sets an "adverse effect wage rate" for each region, and an employer must pay at least the highest of that rate, the prevailing wage, any applicable collective bargaining wage, and the federal or state minimum wage. The H-2A employer must also provide housing at no cost to the worker, reimburse certain transportation costs, and offer work for at least three-fourths of the hours in the contract, a requirement known as the three-fourths guarantee. Those rules come from the statute and the Labor Department's regulations, and they are the reason many growers say the program is expensive and many worker advocates say it is protective.

H-1B: the skilled-worker visa

The H-1B is the one in the headlines. The statute covers a "specialty occupation," meaning a job that requires theoretical and practical application of a body of specialized knowledge and at least a bachelor's degree in the field. Think software engineers, physicians in some settings, university faculty, accountants and engineers.

Who can use it? Only an employer can. The worker cannot apply on his own. The employer files a petition, and before that, a Labor Condition Application with the Labor Department in which it attests, among other things, that it will pay the required wage and that the hire will not adversely affect the working conditions of similarly employed workers. The Labor Department checks the application for completeness, not for whether an American could have done the job. That is the point of distinction between H-1B and H-2: the H-2 programs require a labor-market test, and the H-1B, as a general matter, does not.

Where conservatives disagree. One camp says the H-1B is how the country keeps its edge: the best engineers and scientists in the world want to be here, and a visa is cheap compared with losing them to a competitor. Another camp says the program is used to hire cheaper foreign workers in place of American graduates, that the lottery lets large staffing firms file thousands of petitions, and that the wage levels are set too low. Both camps can point to real cases. The reform ideas that come up most often are selecting by wage level rather than by lottery, raising the prevailing wage floors, and tightening the rules for firms that place workers at other companies' sites. A conservative can reasonably argue for the program and for fixing it. I would say the real test is whether any proposal helps the American-born engineer and the foreign one at the same time, which is hard and worth doing.

H-2A: the farm visa

The H-2A program has been part of immigration law since the 1950s, and its modern form comes from the Immigration Reform and Control Act of 1986. It allows an agricultural employer to bring in foreign workers for temporary or seasonal work when there are not enough U.S. workers.

The key facts are the ones in the table. There is no numerical cap. That surprises people who assume every visa has one. The restriction is not a number. It is the labor certification, the wage rules and the housing and transport obligations. Year-round work, such as dairy, has generally fallen outside the seasonal definition, which is a long-standing complaint among dairy producers.

Who can use it? An agricultural employer or an association of growers that files on behalf of its members, with the Labor Department's certification in hand. The worker comes for a defined period, for a defined employer, and is expected to leave at the end.

Where conservatives disagree. Farm country says: we cannot find enough domestic workers for harvest, the program is slow and expensive, the adverse effect wage rate rises faster than our crop prices, and the paperwork is a nightmare. The border-security wing says: the program is a legal channel that should be expanded to reduce illegal hiring, or alternatively, that the problem will not be solved by importing more labor. A third view says wages in agriculture have been held down by labor supply and that mechanization and fair pay are the long-run answer.

All of these are arguments from principle, and none is a fool's argument. The practical fact is that a farm that cannot hire at harvest loses the crop, and the crop does not wait for Congress. I would not have a farmer in my district wait for a perfect bill. For the broader context of the economics of farm labor, and the other pieces of the farm bill that conservatives argue about, see Eight Myths About Farm Subsidies That Both Parties Keep Repeating and Why Food Stamps Live in the Farm Bill and Whether That Marriage Should Last.

H-2B: the one nobody has heard of

The H-2B is the orphan child of the three. It covers temporary non-agricultural work that is seasonal, peakload, intermittent or a one-time occurrence. Landscaping crews in the summer, seafood processing plants during the season, resort staff at the beaches and in the mountains: if the work is temporary and not farm work, H-2B is the route.

It has a cap of 66,000 a year, divided into 33,000 for the first half of the fiscal year (October through March) and 33,000 for the second half (April through September). When the cap is reached, the visas are gone, which means that an employer whose season starts in the wrong half of the year can find the door shut. The program also requires the Labor Department's certification and a prevailing wage.

Where conservatives disagree. Small-business owners say the cap is too low for the economy and that the lottery for the limited visas turns planning into gambling. Others say the program is attractive to some employers because it can hold wages down, and they point to enforcement problems in some industries. Still others, including many conservatives who care about small business, want the returning-worker exemption made permanent so that employers do not have to reinvent their workforce each year.

One thing I would say is that the H-2B illustrates a conservative principle that applies across all three programs: if you want people to use a legal channel, make it usable. A cap that runs out in days is an invitation to work around it.

Who each one suits

If you are a hospital, a university, a technology firm or an engineering company, the H-1B is the visa that fits, as long as the job requires a specialized degree and you are prepared to pay the required wage and wait for the cap or find a cap-exempt route.

If you are a grower with a defined season, and you can document that you tried to hire locally, the H-2A fits, and you should plan for the housing, transportation and wage obligations.

If you run a seasonal non-farm business, such as a landscape company, resort or seafood plant, the H-2B fits, and you should plan to file early in the half-year and have a backup plan if the cap runs out.

And if you are a worker, remember that all three visas belong to a specific employer for a specific job. They are not general work permits. A worker who leaves the employer generally has to find another employer who will file a petition or leave the country, and that dependence is the source of many of the abuses that reformers on both sides have complained about.

The questions that cut across all three

Here is a short list of questions that conservatives should ask about any temporary work visa.

1. Does it protect American workers? A labor-market test, a wage floor and an honest enforcement agency are the standard tools. The H-2 programs have the test. The H-1B relies on the wage floor.
2. Does it protect the visa worker? A worker tied to one employer is in a weak position. Fraud and coercion are crimes, and the enforcement of those laws matters.
3. Is it temporary? These are temporary visas in the statute. The question is whether the government knows when the worker leaves. That is the overstay question covered in The Visa Overstay Problem and the Exit Tracking Congress Ordered in 1996.
4. Is it verified? An employer who checks work authorization is protected from the competitor who does not. See E-Verify Explained, the Free Federal Check Most Employers Skip.
5. Is the cap a policy or an accident? If the numbers were set decades ago and no one has revisited them, the debate should be about whether they still fit.

For the bigger map of how people enter the country lawfully, read The Four Doors Into America and Who Holds the Keys to Each. And for the argument that a country can be firm at the border and fair to workers at the same time, see The Case for Being Pro-Immigrant and Pro-Border at the Same Time.

The verdict

Here is my verdict. The three visas are not three versions of the same thing, and anyone who argues about "guest workers" without saying which one he means is wasting your time. The H-1B needs honest wage rules, the H-2A needs a faster and cheaper process that still protects workers, and the H-2B needs a cap that matches the seasons of the economy. Conservatives can disagree, and they do, but the disagreement should be about the real rules, not the slogans.

The bottom line

• H-1B is for specialty occupations: a cap of 65,000 plus 20,000 for advanced U.S. degrees, with cap-exempt universities and research institutions.
• H-2A is for agricultural work: no numerical cap, but a Labor Department certification, a wage floor and housing and transport duties.
• H-2B is for seasonal non-farm work: a cap of 66,000 a year, split into two halves of 33,000.
• All three are employer-sponsored and tied to a specific job. None is a general work permit.
• When someone says "guest worker," ask which visa. Then read the rules on the Labor Department and USCIS websites before you form an opinion, because the details and the caps change.