In the wake of Brexit, much of the discourse on EU immigration has centred around the skilled labour market, especially that of multinational corporations.
However, an equally important but overlooked workforce comprises the seasonal and unskilled labour market, particularly that of small- to medium-sized enterprises. While a significant minority of occupations filled by EU nationals are skilled, a majority of jobs would fall within the unskilled category, especially in the agricultural, hospitality, catering, recreation, or landscaping sectors.
Immigration changes as a result of Brexit will mean that employers will have to look at how they will source this labour, particularly for seasonal work. It might therefore be worth a look at how our neighbours across the pond deal with the pressure to fill employment shortages when the local labour market is dry.
In the US, this seasonal demand is filled by the H-2 visa. The H-2 visa dates back to the Immigration and Nationality Act of 1952, which created the category for both agricultural and non-agricultural temporary workers. Common H-2 industries include landscaping, food processing, lodging, and construction. In 1986, the H-2 programme was divided into two sub-categories: one for temporary agricultural workers with no cap, and one for temporary non-agricultural workers, which, with limited exemptions, is subject to a cap.
In addition to the annual cap on H-2 workers, the H-2 visa category includes a number of provisions to protect US workers, including stringent reporting requirements on the employer and limiting availability to nationals of only certain countries designated by the US government. The employer must demonstrate that there are not enough US workers in the area that are able, willing, available and qualified for the role and that hiring a foreign worker will not adversely affect the wages and working conditions of US citizens. Furthermore, H-2 status can generally only be issued in one-year increments for up to a three-year period before the worker must spend at least three months outside the US.
Despite the global economic crisis, demand for H-2 workers remains strong, even in areas with high unemployment rates. The allotment for cap-based H-2 visas has already been reached for this year, a testament to the popularity of the programme.
That said, seasonal work programmes are controversial and must walk a fine line amongst competing interests. Many small businesses and other interest groups have advocated for transparent and efficient access to a temporary labour market that can quickly address labour shortages. However, other parties, such as labour unions, want mechanisms in place to ensure that foreign workers do not displace or undercut the wages of US workers. There is also of course concern about the potential for exploitation and human trafficking in a seasonal, unskilled labour force. While not an easy task, a compromise on these competing interests is needed for reform, particularly since the economy and global mobility has changed substantially since the programme’s creation in 1952.
On balance, the H-2 visa programme appears to complement the US workforce rather than compete with it. H-2 workers make up less than one-tenth of one percent of US employment, while helping to maintain 4.6 million American jobs. These seasonal jobs are known to involve tough manual labour, with a reputation of being non-desirable, and are vital to keeping small businesses afloat during their busy seasons.
As Brexit negotiations continue, we would be well-served by keeping in mind the US model for dealing with unskilled labour requirements and the seasonal spikes they produce. Changes to immigration rules for EU nationals are potentially going to be dramatic, and any new immigration regime will need to account for everything from finance to farming.
Charlotte Slocombe is a partner at Fragomen Worldwide.
See also: Do you have a Brexit plan in place?