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< Back to current issue of Immigration Daily < Back to current issue of Immigrant's Weekly

The ABCs of Immigration - Options for Essential Workers
by Greg Siskind and Amy Ballentine

In light of the indictments charging Tyson Foods with immigrant smuggling, we thought we would look at the options available to employ what are called “essential workers,” those working in semi-skilled and unskilled positions, often in fields where it is difficult, if not impossible, to find US workers. As vital as these positions are to the US, there is no category of nonimmigrant visas that adequately provides for them, and the immigrant category available has many of its own limitations.

The H-2A visa provides for temporary admission of agricultural workers. Despite the fact that agriculture is a highly time sensitive industry, the processing times for obtaining H-2A visas are quite lengthy. The employer must first obtain permission to hire foreign workers from the Department of Labor, which requires numerous attestations regarding the inability to find US workers and how the foreign worker will be paid and housed while in the US. The employer must also show that the need for employees is temporary or seasonal, which alone is often enough to render the category useless for many employers. While some agricultural areas are clearly seasonal, such as crop harvesting, others are not. For example, Tyson and other meat providers generally have the same workload year-round, rendering the category useless.

The same problem of showing that the need for employees is temporary also plagues the H-2B nonimmigrant category. This category covers both skilled and unskilled workers who will be employed in a temporary or seasonal position that is not in agriculture. H-2B petitions require a labor certification from the Department of Labor, which will also make a determination on whether the need for the worker is temporary.

Another possible category for essential workers is the H-3 trainee category. However, it too has significant restrictions that limit its usefulness. First, the training must not be available in the foreign worker’s home country. Second, the foreign worker cannot be productively employed unless such employment is necessary to the training, and the position cannot be one that would ordinarily be filled by a US worker. Moreover, the employer must present a detailed training program. These restrictions make the H-3 category less than ideal for employers with essential worker positions to fill.

Employers could attempt to obtain a J-1 visa, but as with the other nonimmigrant categories, it has significant limitations. J-1 visas can be obtained for training purposes, but the position cannot be unskilled. This greatly reduces its usefulness in agricultural areas. Another possibility using J-1 visas is the summer work program. Under this, foreign college students can work in the US during the summer with few restrictions.

Things are slightly easier for employers seeking an immigrant visa for an essential worker. The third employment-based immigrant visa preference category provides for the immigration of skilled workers who will be working in a position requiring at least two years of training, and for unskilled workers. As with the nonimmigrant possibilities, however, there are issues with this category as well. It requires a labor certification approved by the Department of Labor, a time consuming process. There are only 40,000 EB-3 visas available each year, and of these, only 10,000 may be used for unskilled workers. While all employment-based immigrant categories are now current, this category tends to be the one most subject to backlogs. Also, there is no way for workers to remain legal while the application is pending, which means that employers who hire these workers while waiting for an I-140 approval could very well face a number of problems when switching the employee into green card status (not to mention facing liability for employing unauthorized workers).

As this overview shows, there are few options for employers seeking to fill essential worker positions, even though the difficulty of recruiting US workers is well documented. Many argue that employers could overcome the reluctance of US workers to take these jobs by offering higher wages. However, while this might have the effect of making the job more acceptable to a US worker, it would significantly increase the end cost of the product, whether food, housing, hotel rooms, and so on. Immigrant smuggling is certainly not the answer, but the problem will likely continue until Congress addresses the US need for essential workers.


About The Author

Gregory Siskind has experience handling all aspects of immigration and nationality law and has represented numerous clients throughout the world. Mr. Siskind provides consultations to corporations and individuals on immigration law issues and handles cases before the Immigration and Naturalization Service, the Department of State, the Department of Labor and other government agencies. Gregory Siskind is also committed to community service. He regularly provides free legal services to indigent immigration clients and speaks at community forums to offer information on immigration issues.

After graduating magna cum laude from Vanderbilt University, Gregory Siskind went on to receive his law degree from the University of Chicago. For the past several years, he has been an active member of the American Immigration Lawyers Association and he currently serves as a member of the organization's Technology Committee. He is the current committee chair for the Nashville Bar Association's International Section. Greg is a member of the American Bar Association where he serves on the LPM PublishGregory Siskind has experience handling all aspects of immigration and nationality law and has represented numerous clients throughout the world. Mr. Siskind provides consultations to corporations and individuals on immigration law issues and handles cases before the Immigration and Naturalization Service, the Department of State, the Department of Labor and other government agencies. Gregory Siskind is also committed to community service. He regularly provides free legal services to indigent immigration clients and speaks at community forums to offer information on immigration issues.

Greg regularly writes on the subject of immigration law. He has written several hundred articles on the subject and is also the author of the new book The J Visa Guidebook, published by Matthew Bender and Company, one of the nation's leading legal publishers. He is working on another book for Matthew Bender on entertainment and sports immigration.

Greg is also, in many ways, a pioneer in the use of the Internet in the legal profession. He was one of the first lawyers in the country (and the very first immigration lawyer) to set up a web site for his practice. And he was the first attorney in the world to distribute a firm newsletter via e-mail listserv. Mr. Siskind is the author of the American Bar Association's best selling book, The Lawyer's Guide to Marketing on the Internet. He has been interviewed and profiled in a number of leading publications and media including USA Today, the New York Times, the Wall Street Journal, Lawyers Weekly, the ABA Journal, the National Law Journal, American Lawyer, Law Practice Management Magazine, National Public Radio's All Things Considered and the Washington Post. As one of the leading experts in the country on the use of the Internet in a legal practice, Greg speaks regularly at forums across the United States, Canada and Europe.

In his personal life, Greg is the husband of Audrey Siskind and the proud father of Eden Shoshana and Lily Jordana. He also enjoys collecting rare newspapers and running in marathons and triathlons. He can be reached by email at GSiskind@visalaw.com

Amy Ballentine is an associate in Siskind, Susser & Haas's Memphis, Tennessee office. She graduated Cum Laude with a Bachelor of Arts degree in English Literature from Rhodes College in 1994. While in law school at the University of Memphis she was a member of the law review staff as well as a published author. She also worked with the local public defender’s office in death penalty cases. In May 1999, she graduated Cum Laude from the University of Memphis Law School. She is a member of the American Immigration Lawyers Association. She can be reached by email at aballentine@visalaw.com


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