May 9, 2017

Research Paper: The Legislative History of State-Based Guest Worker Programs



Executive Summary

For decades, the United States Congress has failed to repair America’s broken immigration system with comprehensive reform. In the absence of federal reform to guest worker programs, a number of states introduced various immigration reform proposals of their own.

Federal guest worker programs allow employers to hire agricultural or nonagricultural foreign workers on a temporary basis. However, the federal program is restrictive, overly bureaucratic, and fails to effectively or efficiently respond to specific state labor shortages. To facilitate a more efficient response to the demands of local businesses for temporary workers, thirteen states proposed measures that would provide them with local control over federal guest worker visa decisions.

State-based guest worker reform programs allow governors and state legislatures to utilize visas as part of their own legislative toolkit to improve economic growth, add jobs, bolster population growth, revitalize crumbling cities, and target certain sectors for enhanced labor reliability. Strict limits on agricultural and nonagricultural workers produce labor shortages that hurt labor reliability. State-based guest worker programs provide options for states to tailor visas to promote growth in their state and meet the needs of specific sectors.

For example, California may prefer to use more agricultural, seasonal workers to work in fields, whereas Wisconsin may prefer fewer, longer-term, more experienced nonagricultural workers to work on dairy farms. By tailoring immigration policies to each state’s unique needs, their local economies can operate more efficiently. In fact, we see those outcomes in both Canada and Australia who rely on similar federalist programs with success.

Local efforts to launch guest worker visa programs have been met with significant federal resistance. For example, in 2011, the U.S. Department of Justice (DOJ) threatened a lawsuit against the state of Utah for its state-based guest worker program, which offered state work permits to undocumented immigrants and sheltered them from deportation. No lawsuit was ever filed, but the threat of federal action dampened other states’ enthusiasm for this type of legally uncertain reform.

The federal government’s broad power over immigration policy is well-established by the courts. Thus, if the federal government pursued the lawsuit, the courts may well have found Utah’s policy in violation of current federal law. However, it is within Congress’ power to accommodate these state-based guest-worker programs through federal legislation.

Smart legislative language protecting the limited power of the states as part of a scheme of cooperation with the federal government can thoroughly address concerns about state encroachment on federal power. The unique political circumstances now—with a Republican President, Congress, and Senate—make state-based visa programs particularly appealing as a part of the Republican immigration reform agenda.

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