Panel Transcript: America’s Post-Pandemic Labor Force

Do we need millions of foreign workers?

By Mark Krikorian, Jessica M. Vaughan, and David North on April 22, 2020


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Event Summary

The Center for Immigration Studies hosted a panel discussion on the need for present levels of foreign workers in the United States at a time of high unemployment. With 20 million layoffs in just one month, and both white collar and blue collar workers being impacted, U.S. visa programs continue to bring in an historic number of workers impacting job opportunities and wages for American workers.


Mark Krikorian
Executive Director
Center for Immigration Studies

Jessica Vaughan
Director of Policy Studies
Center for Immigration Studies

David North
Center for Immigration Studies

MARK KRIKORIAN: Hello. My name is Mark Krikorian. I am executive director of the Center for Immigration Studies, and we’re holding a discussion today on this issue of foreign workers in the current economic crisis.

We planned this before the president’s announcement that he would be signing an executive order, maybe as soon as today, instituting a limited moratorium on the admission of foreign workers and immigrants. We don’t know the details of that yet, but our discussion today is very much germane to this issue.

The moratorium tweet, which was tweeted out Monday night – we don’t know the details of the actual executive order yet because it hasn’t been released – but it was likely prompted not just by the actual economic crisis we’re facing, but politically by Tucker Carlson’s focus on this issue on Fox News and also Jeff Sessions, who’s running to come back to the Senate, actually called for a moratorium just a few days ago. He was on Tucker Carlson’s show. So this was, it seems, a political problem also for the White House. They had to address this somehow. And they are in the process of doing it. We’ll see what the details are.

But today we’re going to discuss some of the things that would be in such a(n) executive order, things that would be covered; in other words, what are the details that have to be addressed and examined? Joining us today are two people who know a lot about this subject.

David North is a senior fellow at the Center for Immigration Studies, has been doing immigration policy since the Johnson administration. As I like to joke, it’s Lyndon Johnson, not Andrew Johnson. But still, it’s a very long time. He knows more about this issue than anyone on any side of the issue anywhere. So we’re very happy to have David with us.

And also joining us is Jessica Vaughan, director of policy studies at the Center for Immigration Studies. She has been writing on these issues for many years, actually worked on them as a visa officer in the State Department. So we have two people who really are knowledgeable about the kinds of things that would need to be in such an executive order.

And so what we’re going to do is start with Jessica. She’s going to give us a kind of overview. And then we’re going to look at – (audio break) – programs that are involved in these issues, and after that we’ll take some questions. We’ve already received some questions. If you have questions while you’re watching this, send them either to – email them either to [email protected] or send them – tweet them to us at @CIS_org. So, Jessica, why don’t you get us started?

JESSICA M. VAUGHAN: Great. Thank you. And yes, I agree: All of this takes on new importance considering the state of employment in our country today.

So there are basically four streams of workers who get – who come into our country or get permission to work here that are involved. One, of course, is legal immigration, which brings in about a million people each year, probably about half of whom are working. Some of them are adjusting status – were already in the United States – but many of them are new workers. And of course, there’s – illegal immigration brings in new workers each year, several hundred thousand. We don’t know exactly how many, but we think it’s 5(00,000) to 700,000 a year.

But there are two other streams of new workers into our labor market who come in that are a little bit more subject to control by our government. One of them is the stream of visa workers, and that’s about a million new workers each year who come in as seasonal workers, as white-collar workers – that’s actually the largest share of them, are white-collar workers, contrary to what many people may understand – and also people who come in on student visas who end up as workers.

In addition to this stream of about a million “temporary” – in quotes – visa workers, the government issues about 1.8 million work permits to other foreign workers who arrived here without permission to work but who are eventually given permission to work, and that’s a sizeable number. It’s almost a shadow worker program that most people aren’t aware of but which is huge. And as I said, there’s about 1.8 million new work permits and renewals of work permits that occur each year and in a variety of different categories, but most of which are under the control of the executive branch and could be addressed to slow down the flow of foreign workers into our economy and literally, if they – if they were curbed in number, would instantaneously almost create jobs for Americans and for other legal workers who are here.

So it’s about 4 million through those streams every year. The stock population of temporary or non-green-card workers that is now present in our labor market I estimate to be about 4 million at this moment, some of whom have temporary visas but others have these work permits that are issued in one- or two-year increments at a time. So that’s about one-seventh of the entire foreign-worker labor pool, so it’s a significant share, and one that can be addressed pretty promptly and with pretty quick effects through executive action. Of course, some – Congress can play a role as well, but in a crisis like this there are definitely things that the president can do to make sure that we don’t have workers from abroad taking jobs that Americans could and would like to do.

MR. KRIKORIAN: Thank you, Jessica. That’s a good overview. And what I wanted to do is talk about one of the specific programs, these kind of ad hoc, you know, work-permit programs that you talked about.

And is David still with us?

DAVID NORTH: David hopefully is still with us, yes.

MR. KRIKORIAN: OK. Then, David, what I wanted you to do is if you could talk about the – I think we lost your video, but – there you are. Well, talk about the Optional Practical Training program. This is one of these programs that’s basically in the category four that Jessica laid out, which isn’t a visa. These are – I mean, you’ll explain it, but just these are people who are foreign students, they’ve finished their studies, they’re not students anymore, and we are basically engaging in a legal fiction pretending that they’re still students but giving them these work permits to keep working. And it’s one of the largest guest-worker programs we have, one people don’t usually talk about, and I was wondering if you could fill us in on what some of the details are on this very large foreign-worker program.

MR. NORTH: I will. This is the Optional Practical Training program. It is for recent alien college graduates of American universities. There are about 200,000 of them, or perhaps more. And it’s a subsidized program: The United States government and, as we shall see, some disadvantaged Americans are funding it. This may be hard to believe, but it’s true.

The people hurt by the program are the American college grads who do not get these jobs. They may get other jobs, but they’re not getting these jobs, and these are reasonably good jobs. And therefore – and they get the same pay, generally, as other recent college graduates.

But in addition to the American workers who don’t get jobs, this program is subsidized by the people who normally would be getting benefits from the Social Security, Medicare, and unemployment insurance trust funds. The way the government subsidizes these programs is by saying to these alumni – calling them students – you don’t have to pay into the trust funds: no payroll taxes for you and, significantly, no payroll taxes for your employers. So an employer looking at an American college grad and a foreign college grad, each equally capable, each willing to work, say, for the same salary, the employer is very likely to tilt toward the foreign worker on the grounds it’ll save him some money, 8 percent a year – 8 ¼ percent a year.

So that’s the OPT program. And this was a problem before the virus came along, and it’s more so now, and it will not be solved by any executive order about people crossing our borders because they’re already here. On the other hand, an executive order could easily take care of this program because it has no congressional basis. It was dreamed up by the Bush II administration some years ago, and what it did was it redefined recent alien college grads as students, and it did that because students don’t have to pay – students and their employers don’t have to pay into these trust funds. So that’s the fiction that Mark was just talking about, and it’s been a very effective one in terms of subsidizing these workers.

Unfortunately, the press has been absolutely totally silent about the subsidy in these programs. They’ll mention the OPT program sometimes, but they’ll never explain. And this is true time and time again in all sorts of media. They never explain that there’s an 8 percent markdown on these salaries, and that’s a shame.

And quite frankly, if the executive as it did in Bush II can create this program, the executive can terminate it, slow it down, change it. But it has not done so, and as far as I’m concerned there’s no immediate prospect that that will happen. But we will see.

MR. KRIKORIAN: And you made the good point that the OPT program would not be covered by any measure that’s limiting the arrival of new people, and yet in May tens of thousands of foreign students – not green-card holders or others, but people let in only to study at American universities – are going to graduate and they are going to sign up – be enrolled in this program. So in a sense, there is an opportunity to limit this because there are going to be new people coming into this program, tens of thousands of new foreign workers being essentially imported into the workforce even though right now they’re still students. In other words, they’re not changing location, but they will be enrolled into this made-up system that has no statutory basis, and so there is an opportunity there – a kind of gatekeeping opportunity – to limit the competition, the job competition that these OPT workers are going to represent for American college students who are graduating with them.

MR. NORTH: That’s right. Here’s an opportunity to close down that particular channel. I’ve not seen any hint that the White House is thinking about this, but it should.


MS. VAUGHAN: The other thing to remember, if I – if I might add –


MS. VAUGHAN: – is that the work permits that are issued to people who come in on student visas who get OPT status are not permanent work permits. People have to apply for them every year to be renewed under a certain category, the ones available to STEM workers. Last year there were about 63,000 OPTs who wanted to renew beyond the initial one year that they were allowed to work. Our government can decide that they’re simply not going to renew any of those that have been already issued, as well, and that would free up tens of thousands of jobs as well. And presumably these students would be, then, encouraged to return to their home country, you know, because things have changed here. I mean, these work permits are, you know, very easy to put the brakes on if our government wants to do something about the program and its effect on Americans.

MR. NORTH: Yeah, I agree. That’s right.

MR. KRIKORIAN: So, Jessica, if we could now go back to you, in a sense sort of for the next step, because a lot of the people, especially the STEM – the science, technology, engineering, and mathematics – workers who used to be students, we now pretend that they’re still students and are OPT. As you suggested, they actually get three years of work permits under the subsidized program where they don’t have to pay Social Security taxes, as opposed to regular foreign students who graduated who only get the one year. But one of the reasons for this three-year program is that it serves as a kind of bridge to the H-1B program that people are probably more familiar with. And so I wonder if you could talk a little bit about H-1B and some of the related visas, Ls and Js, and how that relates to competition for American workers in the current economic crisis.

MS. VAUGHAN: Sure. The white-collar visa – temporary visa programs are the next largest after OPT, and these are in a couple of categories including H-1B but also another one for inter-company transfers known as the L visa. There are white-collar workers temporarily in the E – non-immigrant – visa program and a few other opportunities. So it’s hundreds of thousands of people a year. And again, H-1B alone is probably a stock population of about 400,000 workers who are here. These –

MR. KRIKORIAN: Plus family members, just to – yeah.

MS. VAUGHAN: Yes, and that’s not including family members.


MS. VAUGHAN: Although their family members often can and do get work permits also, which are completely discretionary and could be shut down at a moment’s notice if the government wanted to – you know, wanted to create some relief for American workers.

MR. KRIKORIAN: And not to knock you off track, Jessica, but that – those relatives, the spouses of the H-1B workers, there is actually a regulation in the hopper waiting at the White House for final approval that would end the work permits that they have been given, which was made up by the Obama administration. And that regulation has been sitting in the White House because they have – they simply don’t want to approve it. So, again, there’s all different pieces of this that represent additional competition for American workers.

MS. VAUGHAN: That’s right. Those were purely discretionary, and there are some other categories for spouses of guest workers that are – you know, simply don’t need to be approved either.

So these visas exist because employers have succeeded in creating this narrative that there is a shortage of highly-skilled American workers and that they need to reach abroad to fill vital jobs for our economy. Now, the reality is, though, that these are more akin to a cheap labor program for white-collar jobs because these visas have been largely monopolized and used by labor brokers, just as is the case for the seasonal worker programs. Many of these jobs simply aren’t available to Americans to apply for. They’re filled by labor brokers who recruit from abroad, and sometimes even have been found to discriminate against American workers in advertising for workers and in placing workers in – either with big U.S. companies or even sometimes state and local governments. And sometimes even the federal government has used contract visa workers to fill jobs that Americans once did, but that the visa workers are willing to do for less.

And one of the reasons they’re willing to do it for less is not only because of their lower earning potential in their home country, but because they’re told by the employers that if they work as a contract visa worker for a number of years that they will receive – that they will be sponsored for an employment-based green card. The big problem is that the number of green cards available for employment workers is much less than the number that we’re allowing employers and labor brokers to bring in on temporary visas, so they get to extend their status.

And H-1B, for example, is issued for a three-year duration of stat, which is almost automatically renewed for a second three years. And then Congress agreed to allow H-1B workers who have been sponsored for a green card by their employer to get unlimited extensions on their time period here to stay until a green card becomes available, and that can be a number of years because Congress has also limited the number of green cards available.

So there is a large number of people who have de facto settled here, even though they came in on a temporary visa, who displaced American workers, who contributed to the stagnation of wages for workers in some of these professions, whether it be information technology, accounting, nursing, other knowledge jobs – physical therapy. There’s a wide variety of jobs that are filled by these workers. And the ability of people to turn their temporary visa into permanent residence here, whether it’s through a green card or just inertia, really increases the demand for these visas to the point where there are established pipelines now of people who build their future in going to certain schools abroad – for example, in India – and getting hired through one of these labor brokers to get the United States. And it has driven Americans out of job opportunities, sadly.

But again, these programs exist not because employers need these workers, but because they’re able to get cheaper workers through these programs. So the government is, in effect, subsidizing these employers by making these visas available. It’s the same concept that applies to agricultural workers and also other seasonal unskilled workers. But again, the white-collar visas are the largest program that we have, and one that is rife with fraud and abuse, and needs not just tinkering around the edges but a real conceptual overhaul for why we even have this program to begin with and under what conditions should we be allowing employers to bring in workers from abroad.

MR. KRIKORIAN: And I’d only add not only is it that the labor is cheaper, it’s also more controllable. I mean, that’s kind of – in a sense, it’s preferable because not only can it – may it cost less, but in many cases the employers de facto own these people. I mean, it’s not slavery. It’s not – you don’t want to be hyperbolic about it, but they do have control. The way the advocates refer to it is that they are loyal – they’re more loyal workers, and what that means is they can’t just up and go work for your competition because you may have a green-card petition for them in the hopper and if they leave they’d have to start that process all over again. And so, you know, you own them.

MS. VAUGHAN: Right. And under the conditions of the visa, they are tied to the employer that asked for them.

MR. KRIKORIAN: In some visas they can switch employers – in other words, they’re portable – but they still have to find a new one. It depends on the visa program. And even if, for instance, an H-1B finds a new employer, if he wants to stay with a green card that process would have to start all over again, and so people don’t do it. They are loyal, so-called, which is to say, you know, they want to –

MS. VAUGHAN: Tethered.

MR. KRIKORIAN: Yeah, they’re tethered. So –

MR. NORTH: Mark?

MR. KRIKORIAN: Yeah, please, David. Go ahead.

MR. NORTH: May I break in?


MR. NORTH: Everything you were – you’re saying is correct. I use the word “indenture” for these H-1B workers.


MR. NORTH: I think, Jessica, there are probably more than you mentioned. I think there are about 800,000 of them because they don’t go home. They get their visas renewed, as you explained, and they stay and they stay. And the industry talks about these ceilings each year, and the ceilings just deal with the new ones. And you can keep adding and adding and adding to the H-1B population, as we have done.

MR. KRIKORIAN: And that’s an important point to make, is the distinction. It’s a basic distinction, but it’s important to point out stock versus flow. In other words, the flow is how many new workers under any particular program come in in any year, as David suggested. The stock is how many are here at any one time, sort of a snapshot of the people who are already here who came either this year or in previous years. And so much of the discussion focuses on the flow number – how many will be allowed this year, for instance. Nobody talks about – and in fact, often the government doesn’t even know – the actual number at any one time who are in the United States.

David, you, for instance, had to estimate the number of H-1Bs in the United States as a sort of snapshot at one time because – not because the government wasn’t telling us, but the government actually doesn’t even know; can’t, like, push a button and say, OK, well, here’s the table that shows how many H-1Bs are here as of, say, April 1st. They don’t know. And that really does affect discussions.

MR. NORTH: I think they could know. I think they could know if they wanted to, but they don’t.

MR. KRIKORIAN: Oh, yeah, yeah. Yes, they could, probably, but they don’t. That’s true. It’s a good point. My point is there is no – it’s not like they’re hiding the number. It’s not in a book somewhere or even in a database somewhere. They would have to generate it and do some work to find out, and they just don’t.

MS. VAUGHAN: It’s possible to do, though, and others have estimated it.


MS. VAUGHAN: And part – but again, this – it’s good to point out again that there are renewal points to all these extensions of status, and that’s an opportunity for the government to step in and say, hey, things have changed, this extension is not guaranteed. And that’s when we can do something about it to address the – you know, the inertia in this program. It’s not necessary and can be addressed.

MR. KRIKORIAN: Basically, it’s a way to – it’s a way to phase out some of these programs.


MR. KRIKORIAN: It’s not so much, you know, pulling the rug out from under people – in the middle of their, you know, period of stay they’re made to leave – it’s that when you get to these certain sort of gatekeeper points, chokepoints, you’re able to say, OK, now you don’t get to renew. Let me – let me just move – if you wanted to add something, go ahead, Jessica.

MS. VAUGHAN: Well, I was also going to say there are a number of these visa workers who have lost jobs in this current crisis.


MS. VAUGHAN: And some of the advocacy groups are suggesting that there should be an exception made so that they can stay on to pick up work when things, you know, are recovered. But you know, I think that defies common sense. The thing to do is to say, well, you were allowed to work here temporarily under the – you know, under the theory that you were not adversely affecting opportunities for American workers, and all that’s changed now, so your time is up.

MR. KRIKORIAN: Time to go home.

MS. VAUGHAN: And again, as you said, it would happen gradually. There are different expiration dates and different processing periods involved, so it would – it could happen gradually. It wouldn’t be a sudden pulling out of the rug, even though some of them have already lost their jobs.

MR. KRIKORIAN: Right. Now, we’ve been talking about more skilled workers – the OPTs, H-1Bs. Often they’re exaggerated. They’re sold as best and brightest, and most of them aren’t. But still, they do have a certain level of education. I wanted to talk briefly about another visa category, H-2Bs, which is for less-skilled seasonal work that’s not farm work. Farmers have a different visa. David will talk about that.

The H-2B visa is one that, honestly, I – it’s not clear to me why this even exists other than lobbying pressure from employers. It brings in 66,000 of these seasonal workers every year. Landscapers are the biggest category. Almost half of them come into landscaping. And then there’s forestry workers, meat-processing workers, amusement-park workers – believe it or not, carneys. We import carneys because there’s – we apparently don’t have enough. Even maids and housekeepers are the next biggest category. And the employer line, the lobbyists say, well, these are jobs Americans won’t do, which is clearly nonsense. Even among landscapers, two-thirds of people who do landscaping are native-born Americans nationwide. Meat packers, it’s something similar. Forestry workers, it’s something like three-quarters. Amusement-park workers – I looked this up for a video I did recently – 90 percent of them are native-born Americans. Even among the one category that’s more immigrant-heavy, which is maids and housekeepers, even there half of the people who do that are Americans. So to say that that’s a job Americans won’t do is ridiculous.

And to claim that there’s a labor shortage in these occupations is also ridiculous. In a real labor shortage, wages go up. Employers have to bid for workers. They have to make the jobs more attractive. In the jobs that H-1B – H-2B, excuse me – H-2B workers are imported in, wages have either been basically flat or even have gone down. American-born landscapers actually make less money today than they did – today before the – before the economic crisis. They made less money than they did a decade before.

So the idea that we should have these programs at all is ridiculous. And there’s no question that there are now, with 22 million Americans having filed unemployment claims in just four weeks, and this week no doubt there will be several million more, the idea that landscaping companies couldn’t find American workers, that carnival companies couldn’t find people to work for them, is – I mean, is so absurd you really have to question the good faith of people making this argument. This is a cheap-labor program in the purest sense.

And at least the administration canceled the planned increase, because before this economic crisis – without going into a lot of the inside baseball – the Homeland Security Department authorized 35,000 more people. Congress gave them a kind of – not a blank check, but gave them authority to increase up to a certain amount, and they did so. And only grudgingly a week ago or so did they walk that back, and again – and even that was only because Tucker Carlson talked about it and the president saw it, and so they stopped it. They would have gone ahead with that otherwise. But even without that increase, it seems to me continuing the H-2B visa admissions under current circumstances is unjustifiable.

If we could move on to, David –

MS. VAUGHAN: Could I just add?

MR. KRIKORIAN: Oh, no, go ahead. Yeah, please.

MS. VAUGHAN: One thing to remember about H-2B is that some of the workers who come – you know, there are about – there were 84,000 new visas issued in 2018, which is the last year we had. A lot of those workers go from one employer to another in the two seasons that are allowed under the program, so it’s actually potentially almost, you know, double the number of jobs that these H-2B workers are getting. And again, they’re not always available to Americans because of the role of labor contractors in recruiting for this.

MR. KRIKORIAN: And interestingly, BuzzFeed, which is usually a really terrible site on immigration issues as well as everything else – I mean, it’s – they invented these listicles – but they do have – they’ve invested some actual resources into some real reporting, and they have over the past several years done some significant reporting on these H-2 visa programs. H-2B is the nonfarm one. I’ll ask David in a second to talk about the H-2A, which is for farmworkers. But they’ve found – I mean, they’ve documented just flagrant abuse and discrimination against American workers.

There was one instance where the foreman – the employee of the company, the manager – called in the American workers and literally said to them all you Americans are fired because we have these – we have these foreign H-2 visa workers to do your jobs. I mean, it’s – this isn’t subtle. This isn’t something you have to really study and read between the lines to understand. This is open, explicit use of these programs to cut wages and to undermine the job opportunities of American workers.

David, if you could talk about the other H-2 program – this is H-2A, for farmworkers. And this is one that even many immigration hawks acknowledge that there’s some justification for. I’m not a big fan of it, but this is for farmworkers especially in fruit and vegetable harvesting. If you could tell us a little bit about that, David, and then we can, you know, maybe continue the discussion and take some questions.

MR. NORTH: OK. The H-2A program has been around for a long time, and it largely involves seasonal workers. Now, I use the word “growers” rather than “farmers” because when you think about a farmer, you think about, like, my grandparents. They had a little farm. They had – they had some cows. They had some field crops. Most Midwestern farmers never use this program. If you’re growing wheat and corn you’re unlikely to need anybody, and so you don’t use them. The dairy farmers are excluded from the program because they have a year-round need instead of a seasonal need. But essentially, the word “farmworkers” suggests, you know, a little farm, and that’s just not the case. These are factory farms, and the people who are employ them are growers. They’re largely corporations rather than family farms.

And the workers are brought in, as you said, Mark, on a seasonal basis. All of these folks are – or most of these folks are currently in Mexico right now, as opposed to the OPT program where the people who are working are in the United States. These people come in mostly seasonally and then leave. So it’s – in that sense it’s a slightly better program than H-1B, where people stay for the rest of their lives. There are about a quarter of a million of these coming in each year. They peak in the – in the summertime, when crops are harvested, and many of them go back home.

There’s also a small segment of them who are shepherds, and they work – they work generally 12 months a year. They work 24 hours a day. And the Western ranchers are exploiting them. They live in little shacks or trailers or sometimes tents. It’s a very grim, grim life. And if it weren’t for this program, this medieval sort of thing of the following the sheep up to the mountains and back down again, it just wouldn’t persist. And in this case the government is allowing something that has phased out in some other countries, but not here.

So these are the H-2A workers, and they too are subsidized, just like the OPT workers. There’s no Social Security or other payroll taxes charged to their employers or to themselves.

MR. KRIKORIAN: Interesting. And you know, you were – you said about how the part – the small subset that involves shepherds from Mongolia and Peru, and used to be Basques from Spain, is essentially perpetuating a medieval method of agriculture, but it seems – I mean, it seems pretty obvious that even the broader H-2A program, just for harvesting broccoli or what have you, likewise is perpetuating – is kind of subsidizing and enabling the continuation of primitive means of agriculture. In other words, the plants, the seeds are all very highly sophisticated. The processing at the other end is sophisticated. But as far as harvesting the crops, some of them have been mechanized but this program essentially disincentivizes growers from investing in the kind of mechanization. So what you end up with is instead of a machine with two or three people on it harvesting a field of radishes in a morning, you have a whole gang of people kneeling in the dirt and picking these plants by hand, as though this were the 4th century B.C.

MR. NORTH: Yeah. (Laughs.)

MR. KRIKORIAN: And you know, none of this is necessary, it seems to me. It’s not so much – see, a lot of people say, well, are you going to go out and pick the tomatoes yourself? There will be some Americans and green-card holders who probably would be attracted into some of these jobs if this program did not exist and immigration law were enforced better so fewer illegals were there. The wages would go up. The benefits would improve. The conditions might improve some. There’s no question that some people who used to do it would probably be drawn back into it if the job weren’t so terrible and medieval. But I think the supporters of this visa program probably have a point in saying they’re not going to be replacing one for one the foreign workers with American workers if they got rid of the program and enforced illegal-immigration laws. What would happen, though, is in addition to some replacement – some, you know, replacement with American workers – you would have much more widespread – much more incentive to mechanize more of these jobs. And I just wondered if you – either you or Jessica had any thoughts on that part of it.

MR. NORTH: Jessica?

MS. VAUGHAN: I was just going to say it would be really interesting to see what would happen if all of these labor brokers who make money off of recruiting foreign farmworkers turned their energy to trying to recruit workers from within the United States. What would happen? You know, we’ve never –

MR. KRIKORIAN: Like an American guest-worker program, basically, you know. Right.

MS. VAUGHAN: Well, yeah, or a recruiting program. I mean, we’ve seen that, for example, the state of Arkansas is – has a program there where some recent Reservists have taken jobs working in the fields now during this crisis, and it seems to be working out well. The U.K. encouraged people – you know, the English to go back to work in the fields to help get them through this pandemic crisis of employment. And –

MR. KRIKORIAN: Pick for Britain they’re calling it –


MR. KRIKORIAN: – because they had something like that in World War II as well.

MR. NORTH: Let me talk about something that was true about 50 years ago, which I don’t think is as true now. But when I was first in this business there were day-haul buses, usually sort of beat-up old school buses, that would go into the center cites of Philadelphia, for instance, early in the morning, recruit workers from the – from the resident population, put them in the buses, drive them out to the fields in South Jersey, and they would harvest crops, and then they’d go back at night. Now, that I think is a – if policed enough and wages were correct, would be a useful thing to do again.

MR. KRIKORIAN: Absolutely. So if we could – Jessica, I want to go back to you. If you could talk a little bit more about this sort of other work permits for people who aren’t here on work visas, which is something that people really don’t get and yet it’s a gigantic number of workers competing with Americans.

MS. VAUGHAN: It is a gigantic number and even larger than the number of temporary visa workers.


MS. VAUGHAN: So these work permits are being issued to people who don’t have authorization to work when they arrive, and it’s – there are about 60 different categories or grounds under the law that – where they can be issued. But the reality is that about 90 percent of the work permits are going to just a few types of aliens in the country, and those are the OPT workers, as we said – that’s a couple hundred thousand a year. Also, asylum applicants are getting work permits. All of those people who came across in the border surge, or people who are here illegally and then get caught and then ask for asylum, they’re eligible to apply for and often receive work permits. Spouses of visa workers. People who are on the waiting list for green cards are allowed to work even before they’ve been approved for their green card. One of the really big categories is the people with DACA and also people with temporary protected status. So it’s lots of different categories, but it adds up to a really large number of workers in this kind of under-the-radar, gray-market work visa program – well, it’s not a work visa – work permit program, a lot of which could be shut down very quickly by the Trump administration.

And in fact, I think Congress needs to step in because this – the ability to issue work permits is a discretion that the executive branch has that is outside the congressionally-mandated limits on the number of foreign workers that Congress wanted to authorize. So, you know, because it’s grown to so many – 1.8 million in a year – that’s, you know, clearly a huge foreign-worker program that Congress should look at limiting the executive branch’s authority to do. You know, and I think the fate of the DACA program may also rein in the executive authority to do that, but you know, we don’t need to wait for court decisions and so on. The president can do a lot of this on his own.

MR. KRIKORIAN: Because, I mean, essentially what you’re saying is that this makes a mockery of all of the numerical caps that Congress has legislated. Congress has said this category of green cards has this number per year and this visa program has that many per year, and this is basically just rendering that meaningless to a degree because the administration is just – not just this administration, but previous ones – is able to just give work permits – “employment authorization documents,” they’re called, technically, EADs – to not so much anybody they want, but basically anybody they want.

MS. VAUGHAN: Yeah, there’s a lot of discretion. I mean, it’s basically, who needs a temporary work visa or green card when you have a work permit? You get a Social Security number and you’re good to go.

MR. KRIKORIAN: Yeah. So let’s move to questions. We have a bunch of questions. And one of them, David, maybe you can take this one first. This was an interesting question I hadn’t really thought of until we got this.

Under some of these temporary worker programs you’re supposed to show that the conditions in the labor market were such that Americans either, you know – there weren’t enough Americans to do this job. H-1Bs do not require that kind of labor-market test, but other categories do. And so the tests that have been done would have been done before this economic crisis, which is really only a month old. So the question is, should the – should the applications for these visas – should the labor-market test have to be redone, and – because can – is it really legitimate to rely on these labor-market tests that were done in a radically different labor-market situation? And since you’re a Labor Department veteran yourself, David, from a long time ago, I figured you had some thoughts on that.

MR. NORTH: I do, and to ask the question is to answer it. The concept of using a labor certification based on two or three months ago when there are 22 million more unemployed is ridiculous.

Now, I’m not sure that the administration is nimble enough to make that change. The president’s declaration that Mark talked about earlier is vague and brief, and we can’t tell to what extent exceptions would be made for certain industries. I fear that somewhere along the line, despite this momentary ban on migration, that essential workers in the tobacco fields of North Carolina will be allowed in on the grounds that they do vital work. I worry about that, and I’m concerned that we’re not going to react as thoroughly as we should to this great influx of American unemployed who should be getting these – getting these jobs.

We’re talking about a million here and a million there of foreign workers, 4 million maybe, and we’re talking about 22 million American workers. Now, if my math is correct, it’s easy to find people to fill 4 million jobs if you’ve got 22 million people available.

MR. KRIKORIAN: Good point. And related to – you mentioned the executive order. I wanted both of your thoughts – and maybe you could start, Jessica – on what are some of the things people should be looking for in the executive order once it actually happens. In other words, what are the kinds of things that presumably are being wrangled in the White House? Because there’s two factions, as I understand it, one that’s more hawkish and one that’s more subservient to business lobbyists. So what are some of the things people should be looking for in an executive order if that ends up being public today?

MS. VAUGHAN: Well, the first thing – the big question a lot of people have: Is this going to apply to green cards? And if so, is it going to apply to just employment green cards or just certain categories? Because they had to undergo a labor certification process, as well, that is, you know, really –

MR. KRIKORIAN: Rendered moot now, yeah.

MS. VAUGHAN: – moot at this point. Or is it – will it also include the temporary visa programs which, you know, the application process has barely started, but again, the whole basis for having these programs at all is supposedly that there’s no impact on American workers?

So I would argue that this executive order could and should shut down admissions for employment, both green card and many of the – some of the employment green-card categories, as well as all of the temporary work programs. And we also have to ask whether this will affect the visa lottery, which is a green-card program that we run every year that brings in 50,000 new workers who don’t have any ties to this country, haven’t been sponsored by an employer, are going to be looking for jobs. So, you know, is this the year that we shouldn’t have a visa lottery? I don’t think we should have the visa lottery any year, but especially not now.

And what we need to look for are the exceptions that are going to be carved into this executive order. Something like 60 percent of all green cards that are issued each year are to people who are already in the United States who are adjusting status. This should apply not only to people coming from abroad, but also people who are seeking to adjust status if the basis of their adjustment is a job offer that may or may not still exist or the ability to find a job that may or not – may or may not be possible.

But everything should be on the table, whether it’s temporary visas in all the – whether it’s religious workers, farmworkers, landscapers, IT workers, and all of their spouses, and any student who’s graduating. The OPT program, as we’ve discussed, could be shut down at a moment’s notice, and is extraneous and not necessary, especially at this point. So, you know, we need to watch who it’s going to actually apply to. Is it just going to be a temporary pause in processing, or are we looking at a fundamental, you know, kind of moratorium on some of these admissions – which also, by the way, gives us a good opportunity to gauge the effects of shutting down some of these programs? And I think that if a lot of these are shut down we would find that these workers were not actually needed after all, but that there are Americans willing and able to step up into these jobs.

MR. KRIKORIAN: I think that’s probably what a lot of the lobbyists are afraid of, is that it will become clear that these visa programs are unnecessary if they’re halted.

David, do you have any thoughts on what people should be looking for or what you’ll be looking for in the details of the executive order?

MR. NORTH: I’m going to be looking at the populations that are affected. Is this simply going to be a – as Jessica suggested, a pause, that the number of legal immigrants to this country will still be 1.1 million but some of them will not come in the month of May, in which case it’ll be a bit of fringe and showmanship?

I’m particularly interested in what’s going to happen in a program we have not talked about, which is the Summer Work Travel Program, which our colleague Jerry Kammer has written about several years ago, bringing in foreign college students to work kind of long summer jobs, May through September, in various American activities such as in the resorts and for the carnivals, as Mark mentioned in another setting.

MS. VAUGHAN: All the jobs that are shut down now by the pandemic shutdown. (Laughter.)


MR. NORTH: That’s true. But I would like to see that program suspended for a summer, and that’s one of the things I’m looking forward to.

MR. KRIKORIAN: And I think, again, as Jessica mentioned, if you suspended that for a summer, I think you’d see that there’s plenty of Americans willing to scoop ice cream at the beach.

MR. NORTH: Sure.

MR. KRIKORIAN: It’s really just an issue of convenience for the employers. They get to use them for a little bit longer during the year because they don’t go – you know, they don’t go back to school as soon. There may be different school schedules. So, yeah, I mean, I think you’d find that the ice cream would get scooped. The ice cream would not be rotting in the fields, as it were.

MR. NORTH: (Laughs.)

MR. KRIKORIAN: We had another question that relates, and this sort of shifts to what Congress should be doing about this because, obviously, Congress is the one that’s setting immigration policy. The executive branch has a certain amount of discretion – too much in some places – but basically, the rules of the game need to be set by Congress.

And one question that relates directly to this that came from a listener is this idea of dual-intent visas. This is one – yet one more Orwellian aspect, Orwellian term in our immigration policy, where if you’re coming on what’s called a non-immigrant visa the whole point is you’re not supposed to have intent to immigrate and stay permanently. In other words, you’re a tourist. You’re supposed to show you have a return plane ticket, you have a bank account or you own a home back in your home country. The point is, show that you’re actually going to leave. This dual-intent concept, you know, was put into the law – Jessica, maybe you could talk about it some – for certain visas to basically say, well, you both intend to go home and intend to stay. It’s kind of like Schrödinger's cat, only in the immigration business. So if you could tell us a little bit about that, and what Congress could do because that’s actually in the law, and how that could be eliminated.

MS. VAUGHAN: Right. Well, the dual-intent concept applies to certain employment vias categories like the H-1B and L, and basically it –

MR. KRIKORIAN: And also to F, I think, doesn’t it – to student visas?


MR. KRIKORIAN: Maybe not. OK. OK.

MS. VAUGHAN: No. The idea behind it was that if someone came on a temporary visa and their employer really liked them a lot and wanted to sponsor them for a green card, they would be able to do that without returning home. But in effect, what it has done is remove any temporariness about these work visas so that people who are applying for, say, H-1Bs and other which are supposed to be temporary – no more than six years at a time – permission to work in the – in the United States, after which you return home, basically allows them to avoid any pretense of going back to their home country at the time that they apply for a visa.

I personally don’t – I mean, I think it would be great to clarify what dual intent should mean, but this should not be holding back USCIS in adjudicating green-card applications because just because somebody wants to stay shouldn’t necessarily mean that they get to stay. And so they can have all the intent that they want. I intend, you know, every time I walk on the tennis court to win a match; it doesn’t mean, you know, I automatically get to. You know, we can still refuse green-card applications in these categories regardless of the intent of the individual.

MR. KRIKORIAN: And I think that – relating to that concept, when people talk about the green-card waiting list, there are millions of people who have applications in for a green card. And there’s this idea that approving that application is really just a formality, that they should be rubber-stamped; that’s why it’s OK to just give them all work permits because, well, they’re going to get green cards anyway. Well –

MS. VAUGHAN: Not necessarily.

MR. KRIKORIAN: Yeah, applying for a green card does not mean you get the green card. And so this whole concept that application for an immigration benefit is tantamount to receiving it, and that the decision on the part of the immigration bureaucracy is kind of a formality, a rubber stamp, really is something we need to get away from.

There’s another question here that was kind of interesting. I don’t know if – which one of you might want to talk about it. But if H-1Bs are laid off, the reason that they’re here has disappeared and they have 60 days, I believe, to find a new job. But also somebody had asked: What about H-1Bs who are working at home? Because apparently that’s not permitted. You’re supposed to be at the work site that you have been, you know, approved for. Well, if you’re working from home, you are in – you basically become an illegal alien, it seems to me. You’re out of status because you are violating the terms of your visa. Anybody have any thoughts on either one of those, laid-off H-1Bs or H-1Bs working from home?

MR. NORTH: Yeah. Let me –


MR. NORTH: Let me point out that recently USCIS has issued a document saying that in cases of H-1B layoffs you’ve got more time to find another job because of the disruptions in the labor market. So it’s not – it’s not causing people to leave. And it may cause some people not to come, but it’s – we see no – we see no pattern of foreign workers who lose their jobs leaving the country.

MS. VAUGHAN: That’s exactly backwards, too, I think you agree, David. You know –


MS. VAUGHAN: You know, we don’t want temporary workers to have more time to find another job, you know? (Laughs.) This is the time, you know, sorry, it didn’t last three years; it’s time to go home.

But this is also, I think, an opportunity to point out that USCIS does not now publish the actual worksites where temporary workers, H-1Bs, are working, and – even though the employer has to provide that information in the application. So it’s hard to get a handle on where the workers who are hired by the labor brokers, you know, what companies or what government agencies they’re actually working for. So it would be really good to get that information. That really should be public. And we’re trying to obtain that information and some have obtained it in the past, but I think that’s really important to evaluating, you know, what’s really going on in the H-1B program.

MR. KRIKORIAN: If we could take one last question, because we want to wrap this up. We talked about OPT, who are former students who basically we all agree to lie about their status that they’re not students anymore and we give them work visas – you know, work permits – but what about current foreign students? Because current foreign students, the ones who are actually still studying, also can get work permits and work for a certain amount of hours off campus. And given the enormous and unlimited number of foreign students – I mean, the enormous number we have, and there are no statutory limits on them – does that itself, even the honest part of it where they’re still genuinely students but are working, does that itself have an effect on the labor market and compete with American students who are working, as well as other American workers? David, do you have any thoughts on that?

MR. NORTH: Yes. Yes, of course it does. The concept of people working their way through college is, you know, part of the American dream, and so that’s – this is a little harder to attack than the question of characterizing all these former students – all these alumni as students. So, yeah, that’s a problem. I regard it as less of a problem than the OPT program itself.

MR. KRIKORIAN: No, but my point was there I think that there are labor-market consequences to the excessively large number of foreign students we let in –

MR. NORTH: Oh, sure. Of course. Of course.

MR. KRIKORIAN: – as well as consequences on American education itself. That was kind of the point.

MR. NORTH: Yes, of course.

MR. KRIKORIAN: Well, we’ve gone on for about an hour now, so if either one of you have any last thoughts, happy to entertain them now. Otherwise, we can wrap it up. Jessica, do you have anything to finish up with?

MS. VAUGHAN: No, just that all of our work on all these various – the many, many ways foreign workers have access to our labor market can be found on our website throughout the year.

MR. KRIKORIAN: Which is?


MR. KRIKORIAN: (Laughs.) Yeah, And this livestream will also then be available on – at to watch later if you came in at the end and wanted to see what the rest of our scintillating conversation was about.

David, did you have any last thoughts before I wrap it up?

MR. NORTH: Yeah,

MR. KRIKORIAN: Very good. Thank you. And this one went a lot better, I think, than our earlier – last week’s panel discussion. But they’re getting better and better, and we’re presumably going to be doing a lot more of these because nobody’s going to be going back to the office anytime soon. I appreciate everyone listening in. I think we touched on at least some aspect of most of the questions that we got. If not, feel free to reach out to us. We’re on Twitter at @CIS_org. I am personally on Twitter, for those who have a taste for snark and sarcasm, at @MarkS – as in Steven – @MarkSKrikorian. Jessica, what’s your Twitter handle?

MS. VAUGHAN: At @JessicaV_CIS.

MR. KRIKORIAN: And again, the website is Thanks for joining us, and I hope you join us for our next panel discussion. Thank you.



Topics: Guestworkers