How Guest Workers Affect Illegal Immigration

This analysis tracks the history of guest worker programs and their rules as a policy to manage migration flows from Mexico. The most important lesson from this history is that the government can impose rules that make a guest worker program functionally unusable for employers and workers, resulting in illegal immigration. Caps on visas and limits on the types of jobs that the workers can perform inevitably cause illegal immigration to reappear. Wage regulations that artificially increase the cost of hiring far beyond market wages cause employers to seek to hire workers outside of the system. Any highly regulated guest worker program must resort to heavy-handed enforcement measures to keep illegal immigration from spiraling out of control again.

This analysis focuses on Mexican migrants primarily because Mexico is historically the top country of origin for apprehended border crossers and lower-skilled guest worker visas. Moreover, it is the most populous country in North America after the United States, with which it also shares a long border. Thus, changes in U.S. visa and immigration enforcement policy would likely affect the flow of Mexican illegal immigrants more than illegal immigrants from other countries. Put simply, Mexican immigrants are the best group to study to understand how U.S. migrant visa and enforcement policies affect the flows of illegal and legal migrants.

Before the 1880s, the federal government had virtually no restrictions on immigration from any country, so illegal immigration from Mexico was not an issue. In 1885, Congress banned entry to the United States by immigrants who already had job contracts lined up.¹ Later, by passing the Immigration Act of 1917, Congress required new permanent immigrants to be literate in at least one language and to pay a substantial tax to enter the country.² As a result, most Mexican workers encountered nearly insurmountable legal barriers to entry.

From 1917 to 1921, the Wilson administration used the Ninth Proviso of the Immigration Act of 1917 (granting discretion to admit otherwise inadmissible immigrants) to waive the contract labor law, disregard the tax, and ignore the literacy requirements for temporary Mexican workers. Employers had to show that U.S. workers were unavailable, and the workers were limited to participating employers.³ In 1921, however, this guest worker policy ended,⁴ and in 1924, Congress created Border Patrol to enforce the strict rules.⁵ The Great Depression reduced demand for Mexican workers, but the entry of the United States into World War II greatly increased it, causing Congress to reevaluate its Mexican migration policy.

This de facto prohibition on, and increasing demand for, most Mexican immigrants is the context for the formation of the modern guest worker policy regarding Mexicans. This period of policy formation can be roughly divided into five parts:

1. Early Bracero Era: 1943–1953 (increasing visa openness and limited enforcement)
2. Main Bracero Era: 1954–1964 (relative visa openness and strengthened enforcement)
3. Illegal Immigration Era: 1965–1996 (visa restrictiveness and limited enforcement)
4. H‑2 Era: 1997–2019 (relative visa openness and strict enforcement)
5. Title 42 Era: 2020–2022 (relative visa openness and declining enforcement)

Figure 1 shows the number of Border Patrol apprehensions (i.e., civil arrests) of Mexicans from fiscal year 1943 to 2022. The five eras are discussed in the sections that follow, but it is important to note that visa issuances or contracts for the so-called Mexican Bracero Program more closely represent individuals, while the same person can often be apprehended multiple times during a single year. The Early Bracero Era saw the creation of the guest worker program and its expansion, while the Main Bracero Era saw its further growth and then gradual restriction. Virtually no guest workers were permitted during the era of illegal immigration. The H‑2 Era covers a period when the H‑2 guest worker program expanded greatly and apprehensions fell significantly. Finally, the Title 42 Era (named for its main enforcement policy) witnessed a resurgence in Mexican apprehensions alongside continued H‑2 expansion.

In response to the decreased supply of domestic agricultural laborers following the entry of the United States into World War II, the Immigration and Naturalization Service (INS) restarted the World War I guest worker program by again waiving the tax, contract, and literacy rules for temporary farm workers from Mexico in May 1942.⁶ The administration then signed an international agreement with Mexico that laid out certain additional rules for the recruitment of Mexican workers.⁷ The following April, Congress enacted a statute explicitly authorizing the temporary worker program for a two-year period and renewed it—with some brief gaps—until December 1964.⁸

During the period from 1943 to 1953, increasing use of this guest worker program—known as the Bracero program—paralleled a rise in border apprehensions. This circumstance has three policy explanations. First, the program initially had an absolute ban on hiring braceros in Texas, one of the largest states and one with a long history of hiring Mexican laborers. Separately, the program had a nationwide cap of 50,000 individuals per year.⁹ The Texas ban—motivated by tense relations between the state and Mexico—and the nationwide cap limited access to legal workers on many farms, causing farmers to hire illegal migrants. Second, under the initial agreement, the Mexican government had the ability to determine which workers American employers received. To guarantee that they could rehire any trusted employees, farmers had to request that those employees come illegally. Moreover, since the Mexican government controlled which workers were referred, officials commonly demanded bribes from workers in exchange for referring them to U.S. employers.¹⁰ Many workers found it less expensive to cross illegally.

Finally, INS rules made it substantially easier for Mexican migrants to obtain Bracero status if they were apprehended working illegally in the United States. The INS would often give Bracero status to illegal Mexican migrant workers through so-called spot legalizations at their employment sites after recording their identity information. Spot legalizations were part of the euphemistically labeled process of “drying out” illegal immigrants by legalizing them, a reference to the then-common offensive term “wetback” to describe illegal Mexican immigrants.¹¹ From 1949 to 1951, the U.S.-Mexico agreement even gave Mexicans who were already illegally working in the United States explicit preference for Bracero jobs over new admissions.¹² From 1947 to 1950, there were about 152,681 Bracero legalizations.¹³

This perverse set of rules legalized many illegal immigrants, increased apprehensions by incentivizing illegal border crossing, and created a market model in which illegal hiring became the norm. While the broad policy of legalization stopped in 1952, some legalizations continued intermittently until early 1954, often during peak farming season.¹⁴ This unique combination of a complex and capped program combined with limited enforcement and prioritization of illegal migrant workers for Bracero jobs caused sustained growth in both legal and illegal migration. As a result, apprehensions rose from about 32,000 in 1946 to 875,000 in 1953, while the number of braceros grew from 32,000 to 200,000 (see Figure 1).

Rising apprehensions peaked at 1 million in 1954, culminating when the INS initiated Operation Wetback, a mass deportation effort that included Border Patrol checkpoints, employer raids, and stepped-up immigration enforcement in cooperation with the Mexican government and local police. One reason that Border Patrol apprehensions are only a fuzzy proxy for changes in illegal crossings is that until 1986, Border Patrol had a significant interior-enforcement apprehension program. In 1954, for instance, Border Patrol agents arrested 386,956 workers already employed in the United States—38 percent of all its arrests. Across the entire period, about 30 percent of all apprehensions were of Mexicans already employed in the United States. This means that Border Patrol was not only focused on people crossing into the country.

In any case, Operation Wetback and its predecessor’s efforts reduced apprehensions only because the INS allowed Mexican workers to enter as braceros. Before the campaign began, INS commissioner General Joseph Swing visited the border to assure employers, “if there is any employer who cannot get legal labor all he has to do is let either the Department of Labor or Immigration know and we will see that he gets it.”¹⁵ Later, he reported that this message worked, stating that “realizing that their illegal labor could be replaced by legal labor, they were in favor of the exchange” and “cooperated splendidly.”¹⁶ The INS also did not legalize illegal Mexican migrant workers in the United States during Operation Wetback. Instead, agents transported many of them to the border and readmitted them as braceros, a process referred to as “a walk-around the statute.”¹⁷

Afterward, braceros were only admitted from Mexico and spot legalizations stopped. In early 1954, the eagerness of Mexicans to enter legally under the Bracero program became apparent when the Mexican government initially refused to sign another international agreement and attempted to stop the unilateral recruitment of Mexicans by U.S. employers. This led to a “series of bloody clashes and riots between Mexican guards and aspiring braceros” trying to reach the United States.¹⁸ The desire of Mexican immigrants to enter the United States legally is also reflected in two other facts. First, about 95 percent of braceros registered their return with the government in Mexico from 1954 to 1964, with compliance increasing over time (see Figure 2).¹⁹ Second, most braceros were so-called repeaters who had previously worked under Bracero status.²⁰ Starting in 1954, the INS aided this repeat migration by issuing I‑100 cards that allowed returning workers to be readmitted without first being recruited by the Mexican government, as was previously expected.²¹ This new policy meant that employers no longer needed to rehire trusted workers illegally.

Expanding enforcement and expediting the process for returning workers caused illegal immigration to decline. Operation Wetback coincided with a roughly 50 percent increase in the Bracero program in 1954, and by 1955, the program had doubled from the 1953 level. Apprehensions fell nearly 80 percent from their 1954 peak. By 1956, the Bracero program reached its all-time high of about 445,000 guest worker visas, and apprehensions had fallen 94 percent—to the lowest level in a decade. “The so-called ‘wetback’ problem no longer exists,” Commissioner Swing proclaimed. “The border has been secured.”²² The INS explained why:

The effect of the Bracero expansion was much greater than the number of visas issued. Because workers were willing to wait more than a year to obtain a visa, each one displaced at least two deported workers and as many as three apprehensions.²⁴ The effect of the huge increase in visas continued to be felt years later, even after visas were cut (see Figure 3). In 1963, the Associated Press reported on the hundreds of Mexicans waiting more than a month outside the Mexico City recruitment center for the chance to obtain a Bracero referral. “It is a big gamble,” one worker said. “But it is worth it. I have been waiting here many days, and my pesos are not so many now, but if I am chosen to go to the other side my few pesos soon will have much company.”²⁵

In the Immigration and Nationality Act of 1952, Congress also repealed the literacy and contract labor provisions of the Immigration Act of 1917.²⁶ By 1954, the number of Mexicans receiving immigrant visas (which authorized travel to receive permanent residence) jumped nearly tenfold as the number of Bracero visas grew.²⁷ The State Department restricted Mexican immigrant visa issuances in the late 1950s on the grounds that the Bracero program already covered year-round workers. But when Congress banned the hiring of year-round workers under the Bracero program in 1961, the State Department returned to admitting many of them as permanent immigrants.²⁸

Border Patrol officials often testified before Congress that it would have been “impossible” to reduce illegal migration without the Bracero program.²⁹ “Should [the Bracero program] be repealed or a restriction placed on the number of braceros,” wrote one agent, “we can look forward to a large increase in the number of illegal alien entrants into the United States.”³⁰ This statement turned out to be prophetic.

Beginning in 1958, the Department of Labor (DOL) introduced new wage and housing regulations that eventually reduced the number of visas issued under the Bracero program by more than half.³¹ In 1963, it separately required all “permanent” or year-round Mexican agricultural workers entering as permanent residents to have individual labor certifications before entry. The DOL designed the labor certification to give it the final say over whether the employer truly needed the worker.³² It then denied labor certifications to these permanent Mexican agricultural workers in 90 percent of cases.³³ Soon after these new restrictions were placed on both temporary and permanent visas, apprehensions of illegal Mexican immigrants along the border began to rise again. The period of a secure border and relative visa openness officially ended in 1965, the year after Congress failed to renew the Bracero program. In the Immigration and Naturalization Act of 1965, Congress also capped permanent legal immigration from the Western Hemisphere—including from Mexico—for the first time, and it mandated the costly individual labor certifications for all employer-sponsored permanent immigrants.³⁴

Apprehensions of Mexicans began to rise soon after the number of visas dropped, but the increase in apprehensions was slower than the drop in visas. Farmers and Mexican migrant workers had held out hope that the DOL would allow employers to use the H‑2 guest worker program, which Congress created as a supplement to the Bracero program in 1952.³⁵ Farmers in several East Coast states already used the H‑2 program to bring non-Mexican workers from the Caribbean, and nothing in the law precluded farmers currently using the Bracero program from using it once the Bracero program ended.³⁶ Mexican workers clearly believed that the Bracero program would come back in another form, so many waited and decided not to cross illegally. The Mexican government registered the return of nearly all braceros who entered the United States in 1963 and 1964.³⁷

The INS also thought that the DOL might permit Bracero farmers to use the H‑2 program. An internal INS report from May 1965—the first year after Bracero ended—stated: “With the expiration of [the Bracero program], a marked increase in the number of Mexican nationals who will attempt to enter the United States surreptitiously may be expected … [But] if recruitment is permitted under [the H‑2] provision and the number of laborers admitted meets the demand for labor, then little change from the present problem is anticipated … [But] if the foreign labor supply is cut off, then the attempted entry of illegal aliens may possibly create a serious enforcement problem.”³⁸ In fact, even a DOL-commissioned report from 1965 admits, “Initially there was much uncertainty about the prospects for obtaining substantial numbers of Braceros.”³⁹ Uncertainty about whether the DOL would permit the hiring of H‑2 workers under rules similar to those of the Bracero program likely explains some of the delay in the return of apprehensions to the pre-1954 level, despite the virtual disappearance of Mexican guest workers.

However, the DOL then proceeded to intentionally exclude virtually all Mexicans from the H‑2 program. In December 1964, just weeks before the Bracero program would end and Mexicans would have theoretically begun to enter on H‑2 visas, the DOL introduced new restrictive regulations.⁴⁰ The new regulations mandated extensive benefits not widely provided on U.S. farms, requiring that employers pay for the transportation, housing, insurance, and other costs of both H‑2 and U.S. workers. The DOL restricted H‑2 jobs to a period no longer than 120 days, explaining that the reasoning for the limit was that “the only justification for bringing in labor is to meet special peak conditions.”⁴¹ One Florida grower called the limit “disastrous to almost all crops” in testimony to Congress, noting that farmers were “faced with 2 to 3 months or more of harvest … without any available labor.”⁴²

As costly as these regulations were, the new wage regulations imposed an even heavier cost on migrant workers and their employers. The DOL increased the agricultural H‑2 minimum wages introduced in 1962—known as the Adverse Effect Wage Rate (AEWR)—by taking the average agricultural wage in a state in 1950 and increasing it by the change in manufacturing wages from 1950 to 1962.⁴³ Since manufacturing wages grew faster than agricultural wages, the AEWR artificially inflated the agricultural minimum wage well above the market wage that farmers would pay without government intervention. After 1962, wage rates were updated by the increase in the national average agricultural wage but on a higher level thanks to the 1964 peg to manufacturing wages. The 1964 increase in the AEWR raised wages for California agricultural workers by 40 percent, from $1.00 to $1.40 per hour.⁴⁴ Not satisfied that this was sufficient to prevent foreign hiring, the DOL revisited the rule in February 1965. It raised the rate that year to $1.50 per hour for various California crops and raised it to $1.60 for all crops in 1967.⁴⁵ Additionally, all H‑2 wage and benefit rules for housing, transportation, insurance, and other benefits had to be extended to all U.S. workers if the farmer employed a single H‑2 worker—dramatically raising the regulatory fixed costs for hiring a single H‑2 worker. As a result of these new rules, all Western growers dropped out of the H‑2 program by 1968.⁴⁶

The AEWR rules also required that employers that pay piece rates, wages determined per unit harvested, to guarantee that all workers made at least the hourly rate regardless of their productivity. This rule redistributed the earnings of the most productive workers to the least productive. In early 1965, employers explained to Congress that this would “have the effect of destroying the system” of incentives.⁴⁷ One report from Michigan in 1965 documented productivity declines of 40 percent where growers had switched to the new wage system, hoping to obtain H‑2 workers who never came.⁴⁸ A DOL panel appointed to implement its Bracero replacement plan found that citrus growers refused to pay the new $1.40 per hour with a piece-rate guarantee, even though this made them “unable, because of labor shortages, to satisfy more than 60 percent of the market demand.”⁴⁹

In December 1964, Secretary of Labor Willard Wirtz stated that the DOL’s policy going forward would be to disallow “any large-scale use of foreign workers in the future,” and instead, he said, “It is expected that such use will be very greatly reduced, and hopefully eliminated.”⁵⁰ This institutional attitude remained for years. One regional DOL administrator was quoted as saying, “There will be no H‑2A workers in [my] region during his watch.”⁵¹ Reflecting this goal, the DOL’s Employment Service intentionally prioritized referring U.S. workers to H‑2 jobs over non-H‑2 jobs, and it created special recruitment programs specifically designed to fill H‑2 positions with American workers. For instance, the DOL created the “A‑Team” program to recruit high school students, promising that the program would yield more than 4,500 workers to Michigan growers in 1965. Only 486 showed up.⁵²

By continuously referring U.S. workers to jobs, the DOL’s recruitment efforts maintained the statistical appearance of filling jobs with American workers, but in actuality, workers’ failure to show up or stay for jobs resulted in heavy economic costs. The main results of the DOL’s recruitment efforts were falling agricultural productivity and crops rotting in the fields. American farmers adapted by using more machines to harvest crops, which necessitated a shift toward growing less profitable products that could be harvested by machine.⁵³

The restrictions also affected H‑2 employers that did not transition from the Bracero program. For instance, Florida growers typically used Caribbean H‑2 workers, yet a Florida Fruit and Vegetable Association representative later testified that

Nonetheless, in 1968, the DOL’s annual report bragged, “There were 195,000 Braceros brought into this country in 1962: none in 1968. That was quite a story.”⁵⁵ More than a decade later, in 1980, the Congressional Research Service found, “The limited number of Mexican H‑2’s has been partly the result of administrative determinations by the U.S. Labor Department.”⁵⁶ Although apprehensions did not immediately return to their prior level, the INS reported in 1966 that they were rising quickly as migrants and U.S. farmers discovered that the government would not create a guest worker visa program to replace the Bracero program: “The elimination of the [Bracero program] under which thousands of Mexican laborers had been imported created a challenge and a problem for the officers responsible for preventing surreptitious entries. Mexican workers, cut off from the legal avenues of obtaining a livelihood which they had become accustomed to over the years, sought to enter illegally and thus obtain work.”⁵⁷

Every INS annual report from 1965 to 1970 stated that the elimination of the Bracero program directly increased the number of illegal Mexican immigrant crossings that, in turn, resulted in more Border Patrol apprehensions. Beginning in 1971, the INS annual reports stopped making this causal claim even though apprehensions continued to rise.⁵⁸ From 1964 to 1974, apprehensions grew from about 35,000 to nearly 617,000, and the number remained high throughout the 1980s (see Figure 4). Eventually, in 1986, Congress resorted to legalizing most illegal immigrants when apprehensions peaked at 1.6 million.

Illegal migrant workers continued to dominate the flow of workers into the United States until the late 1990s. Their dominance fell gradually over time only as administrative opposition to guest workers waned and government efforts to enforce immigration laws grew. The gradual expansion and liberalization of guest worker visas started with the passage of the Immigration Reform and Control Act (IRCA) in 1986. IRCA made the following changes:

• split the H‑2 program into two different visas: the H‑2A visa for seasonal agriculture and H‑2B for seasonal nonagricultural employers;
• imposed the first sanctions on employers that hired illegal immigrant workers;
• increased Border Patrol; and
• provided legal status to illegal immigrants who arrived in the United States before 1981 and to workers with at least 90 days of experience on U.S. farms in 1984, 1985, or 1986 under the Special Agricultural Workers (SAW) program.⁵⁹

Importantly, SAW permitted applicants to apply at a U.S. consulate or port of entry in Mexico from 1987 to 1989, a provision used by about 118,000 applicants.⁶⁰ The INS also granted applicants admission at a port of entry and a 90-day work permit to allow them to obtain proof of their work history.⁶¹ Until its expiration in 1989, this provision contributed to the significant decline in border apprehensions.

When IRCA split the H‑2 program into the H‑2A and H‑2B visas, the new statutory language otherwise made very few changes to those programs. It codified some of the DOL’s restrictive requirements, such as the farmer’s requirement to provide housing. The only streamlining measure was to reduce the required H‑2A filing date and recruitment period from 80 days to 60 days prior to the date of need (further reduced to 45 days in 1999).⁶² Nevertheless, the INS seized the opportunity to make further revisions.

The Reagan administration had already adopted a more pro–guest worker position, the first in two decades. In August 1985, for instance, Border Patrol chief Buck Brandemuehl told the Snake River Farmers Association in Idaho that “if you use the H‑2 program, you’ll make our job easier. Through cooperation, we’ll all be winners.”⁶³ Brandemuehl assured them that the INS had “better things to do than scurry around Idaho chasing illegal irrigators” and that if they applied on behalf of workers they had previously hired illegally, the INS would not use those applications to target the workers. Nonetheless, the DOL denied the association’s 1986 applications because they offered only the prevailing wage, not the DOL’s inflated AEWR for the state.

But in 1987, IRCA forced the DOL to issue new H‑2A regulations.⁶⁴ The DOL’s draft regulations initially proposed to keep the AEWR methodology the same, but IRCA required consultation with both the Department of Agriculture and the INS.⁶⁵ Unlike the DOL, the INS’s official position was that it was “leading the charge to try to make sure that H‑2A is broad enough to cover [the] problem” of illegal immigration, and that the Department of Agriculture strongly represented farmers’ interests.⁶⁶ After interagency review and congressional pressure, the DOL’s final rule dramatically reduced the AEWR. Previously, the average farm wage was inflated by the increase in manufacturing wages from 1950 to 1962. The new rule simply used the regional average farm wages. Nationwide, the AEWR across all states fell from an average of $5.62 under the old calculation to $4.28—a 24 percent decline—and a dozen states saw AEWR declines of greater than 30 percent.⁶⁷

The experience of Idaho farmers shows how important these Reagan-era regulatory changes were in boosting the hiring of H‑2A workers (see Table 1). In Idaho, the new AEWR was 25 percent lower than the wage under the old calculation (although it was still higher than the prevailing wage). The wage change allowed the Snake River Farmers Association to apply for and receive certification to hire H‑2A workers for the first time. Most illegal workers quickly followed the new procedures and received H‑2A visas because they wanted to avoid INS arrests and smuggling fees. At least one Idaho worker was even a former Bracero worker who had worked illegally since 1965 and was now legalized again with an H‑2A visa.⁶⁸

Also in 1987, the INS eliminated a 1978 rule that required piece-rate pay to automatically increase proportionally to any increase in the hourly AEWR.⁶⁹ This meant that if workers were more productive (e.g., picked more baskets of apples) and earned higher wages as a result, the rule required farmers to pay more for each basket the following year. The 1987 regulations also specifically allowed newly enrolling farmers to set and raise minimum production standards for piece-rate workers if the standards were a normal practice for the crop.⁷⁰ Production standards greatly reduced the risk that below-average performers would receive wages in excess of their productivity or that piece-rate earnings would be mandated at a level above the AEWR.⁷¹ The INS also guaranteed that H‑2 employers could select the same workers to return year after year, giving them further assurance that the AEWR would be less of a regulatory burden.⁷²

The 1987 regulations also rescinded a requirement that farmers make the same recruitment efforts for U.S. workers as they did for H‑2A workers.⁷³ For instance, if an employer hired a consultant to help with H‑2A hiring—a necessity for most farmers—it would have previously had to also hire a consultant for U.S. workers.⁷⁴ Similarly, most farmers relied on the State Workforce Agencies (SWAs) to conduct recruitment inside the United States, while many hired agents to find workers abroad. The old rule would have required them to hire agents to search for U.S. workers as well. By removing this burden, the new rule further reduced the cost of hiring H‑2A workers.

Local DOL officials often opposed and undermined these regulatory reforms, but some states adopted a different attitude.⁷⁵ Instead of intentionally referring unemployed U.S. workers to H‑2 jobs over non-H‑2 jobs, as had been done since the 1960s, in the 1990s some DOL-funded and state-run SWAs began referring unemployed U.S. workers to non-H‑2 jobs. In 1998, the DOL’s Office of Inspector General found that SWAs filled 55 percent of non-H-2A farm job requests, but only 2 percent of the H‑2A requests.⁷⁶ At least some of this difference was intentional; the strategy guaranteed that most non-H‑2 jobs were filled, and employers who went through the H‑2 process could hire foreign workers legally. If the distribution of job referrals were equal, many more non-H-2A jobs would have gone completely unfilled.

For example, in 1996 the General Accounting Office (GAO) reported that the North Carolina SWA had referred 13 workers to 5,000 H‑2 farm jobs, while they referred 15,886 workers to non-H‑2 farm jobs.⁷⁷ North Carolina went from having no H‑2 migrant workers in 1988 to quickly becoming the largest user of H‑2A workers, again mostly by legalizing formerly illegal immigrant workers.⁷⁸ Similarly, the GAO documented how Mexican H‑2 migrant workers first came to Virginia tobacco fields in 1978 through the action of a single state employer who had Bracero experience and convinced the DOL to issue a labor certification for formerly illegal workers.⁷⁹ In 2007, a DOL guidance document explicitly required the prioritization of non-H-2A jobs once H‑2A workers had left their home countries for the H‑2A jobs.⁸⁰ At about the same time, the DOL required all states to attempt to screen out illegal immigrant workers before referring workers to H‑2A and H‑2B jobs.⁸¹

Until the 2000s, the H‑2A program for agricultural workers received roughly double the number of Mexican visas that its sister H‑2B program for nonagricultural workers received. The H‑2B program had few users and a high denial rate of 36 percent in 1990.⁸² In 1998, however, the DOL adopted a new prevailing wage methodology that set the entry-level wage as the average of the bottom third of the wage distribution (roughly the 17th percentile) in the occupation rather than 95 percent of the average wage for the occupation.⁸³ Within two years of this methodological change, the H‑2B program doubled and equaled the H‑2A agricultural program in the number of visas available for Mexican guest workers. Small landscaping businesses drove this growth, exploding to become the largest users by 2000,⁸⁴ and by 2003, the H‑2B program was almost twice the size of the H‑2A program. In 2015, the Obama administration rescinded the skills-based methodology, but by that point, thousands of landscapers were already accustomed to the program and continued with it anyway.⁸⁵ In 2020, landscapers received seven times more certifications for their workers than employers with any other type of positions.⁸⁶

In 1987, the DOL predicted that it would certify 250,000 farm jobs under the H‑2A program because IRCA-imposed employer sanctions made it more costly to hire illegal immigrant farm workers and the Reagan administration instituted many regulatory reforms to the H‑2A wage rules to lower the cost of hiring legal migrant guest workers.⁸⁸ A few new employers joined the program from 1986 to 1995, particularly tobacco growers in North Carolina, but the program actually shrank because sugarcane growers—the largest pre-1986 users, who had accounted for half of the H‑2 program up to that point—stopped using H‑2A migrant workers when the growers fully mechanized harvests.⁸⁹ For most growers, the H‑2A’s complex rules, wage requirements, bureaucratic unpredictability, plus the cost of supplying free housing, made legal guest workers a less economical option than illegal workers, as long as illegal workers were easily available.⁹⁰

Thus, the shift toward H‑2 visas was gradual. U.S. employers and Mexican migrants did not make a hard break from contracting illegally to moving en masse to the H‑2 program. This was unlike the experience of the early-to-mid-1950s, when the government’s deregulation and expansion of the Bracero program, combined with increased immigration enforcement efforts like Operation Wetback, almost immediately and all at once pushed migrants and employers from illegal employment to visa use. The H‑2 adoption process was gradual, but a rough dividing line between the “era of illegal immigration” and the era of more prevalent H‑2 use can be drawn around 1996 when Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA). IIRIRA ramped up immigration enforcement and doubled the number of Border Patrol agents.⁹¹ From fiscal year 1995 to 1998, the H‑2 programs experienced their first surge of growth, doubling from about 20,000 to nearly 43,000 visas as many workers rushed home to legalize their status.⁹² By 2001, the programs had doubled again to over 89,000.

The implementation of IIRIRA and the deregulation of H‑2 visas combining to channel illegal Mexican immigrants onto legal guest worker visas in the late 1990s was similar to how enforcement efforts and the expansion of the Bracero program in the 1950s reduced illegal immigration by diverting illegal immigrants onto visas. In 1986, Congress had made it illegal to employ immigrants who lacked documents that proved authorization to work.⁹³ While many immigrants have easily evaded this law with fake documents, individual government audits of employers’ employee records over many years have forced affected employers to replace their workers en masse.⁹⁴ This threat of an audit had almost no immediate effect because the annual likelihood of audits or raids affecting any particular worker or workplace was low, but the cumulative odds of at least one audit or raid over the three and a half decades since 1986 are much higher. A single workplace raid is enough to force major employers to apply for H‑2 workers. The largest H‑2A user in California and Arizona started using the program after a 2003 workplace raid.⁹⁵ And in 2010, an I‑9 audit in Washington caused Gebber Farms to become another large user, replacing half its workforce, made up of illegal immigrants with fake documents, with H‑2A workers.⁹⁶

After 1986, in addition to the AEWR, the main concern for employers was the responsibility to provide free housing for employees. But once an employer had borne the fixed cost of building housing and was familiar with the regulatory process, the marginal cost of hiring additional H‑2A workers was very low, so the program was able to quickly expand once employers joined.⁹⁷ In 2012, the DOL also rolled out an online filing system for H‑2A and H‑2B applications that largely cured its chronic failure to meet deadlines for processing, a concern often cited by employers not using the H‑2A program.⁹⁸ From 2011 to 2015, the number of Mexicans participating in the H‑2 programs doubled, and it doubled again from 2015 to 2020. As hiring under the legal programs picked up, more Mexicans were willing to wait for a visa than to cross the border illegally. In 2019, one Mexican, a former H‑2A worker, told the Washington Post that while he had not received a visa that year, he was willing to wait and was thinking “about working in the United States—but only with a visa.” He added, “Most of my friends go with visas or they don’t go at all.”⁹⁹

Congress and the administration also continued to expand the number of Border Patrol agents until 2009, by which point the force was more than five times larger than it had been in 1994.¹⁰⁰ Virtually every other measure of immigration enforcement also reached historic new highs. Immigration detention facilities grew to a capacity that supported tens of thousands of people.¹⁰¹ In the 2010s, deportations of Mexicans reached levels not seen since Operation Wetback.¹⁰² Because of increased enforcement agent numbers at the border, apprehensions during the 1990s and 2000s cannot be compared to those in earlier years, given that more agents would give rise to more apprehensions without a necessary change in the total number of border crossers. To control for that effect, Figure 5 compares the number of guest workers to the number of apprehensions the average Border Patrol agent made during the year. In this model, apprehensions fell from over 300 per agent in the early 1990s to a low of 7 in 2017, before increasing again to 42 per agent in 2022.

Illegal Mexican immigration rose dramatically beginning in mid‐​2020. By 2022, Mexican apprehensions in absolute terms increased from about 169,000 in 2019 to about 740,000—a level not seen since before the 2009 recession. This unexpected reversal coincided with two significant events.¹⁰³ The first was a dramatic rollback of enforcement against Mexicans crossing illegally starting in 2020. The second was a combination of factors: the increase in the number of U.S. job openings from 2019 to 2022, which rose to an unprecedented level, and the burgeoning demand for H 2B visas, which far exceeded the program’s cap every year.

First, in March 2020, Border Patrol suspended normal enforcement operations when the Centers for Disease Control and Prevention (CDC) signed an order under Title 42 of the U.S. Code “suspending entry” of noncitizens who normally would be detained in congregate settings. Border Patrol enforced the CDC’s Title 42 order by expelling almost all Mexicans back to Mexico in a couple of hours at most. These quick returns dramatically reduced the costs of crossing illegally. Before Title 42, in 2019, 82 percent of Mexicans were processed under removal procedures that required their detention for days, sometimes even weeks, without release into the United States. Formal removals also carry a severe legal immigration consequence—a ban on attempting to return to the United States for at least five years. Title 42 carries no legal immigration consequences and removed the threat of detention after arrest.

Worse than simply detention, criminal prosecution was also a significant possibility for illegal border crossers before Title 42. In 2019, Border Patrol referred 35 percent of apprehended Mexicans for criminal prosecution for illegally entering the United States, during which time they spent several months in federal prison. For subsequent attempts, immigrants are usually sentenced to an average term of 18 months.¹⁰⁴ Mexicans were 63 percent of all Border Patrol criminal immigration referrals in 2019. The number of criminal entry and reentry prosecutions declined by 87 percent from July 2019 to July 2021, and the number of apprehensions of Mexicans increased from 12,683 to 52,993 (see Figure 6). Even if the enforcement measures failed to deter repeat attempts, they made it impossible to make any attempt for a significant period of time. “They are sending back people very quickly, in hours,” said one Mexican seeking to cross. “The rumor is that chances of crossing undetected are higher, as you can try and try again without much consequences.”¹⁰⁵

Before 2009, Border Patrol had offered most apprehended Mexicans the choice between a “voluntary return” to Mexico and detainment for a traditional removal hearing. The overwhelming majority chose the “voluntary return” option. For this reason, Border Patrol labels voluntary returns the least “effective and efficient” option for handling crossings because crossers want to be able to cross again.¹⁰⁶ As a result of Title 42’s effectual reinstatement of voluntary returns as the norm of border apprehension approach, repeat crossings rose dramatically in 2020. The percentage of total apprehensions of “unique” Mexican persons fell from 89 percent in February 2020 to 64 percent in March 2022.¹⁰⁷ “I will continue to cross until I make it,” said one Mexican subjected to a Title 42 expulsion. “I feel it’s easier … with there being no court and no deportations (because of) the coronavirus. Most deportations are to Juarez, not the places (the migrants) come from.”¹⁰⁸

Second, the demand for workers in the United States far exceeded the supply of visas. While the number of U.S. job openings was already high in 2019, openings reached unprecedented levels in 2021 and 2022—effectively doubling the pre-pandemic average. Much of the increase in apprehensions preceded the increase in U.S. job openings, which illustrates the enforcement effects of Title 42, but job openings could explain the continued rise in apprehensions in 2021 and 2022 (Figure 7).

The ease with which crossers can find jobs allows them to afford otherwise expensive crossings, and smugglers often charge an additional fee in exchange for deferring payments until illegal immigrants cross into the United States. One successful Mexican crosser told the San Diego Union-Tribune that his U.S. employer called him to beg that he return to work, agreeing to pay the $8,000 smuggling fee if he made it. “The only thing I want is to work, to take care of my children, to pay for my land and to give my children a better future,” another woman told the Union-Tribune. “That’s why I’m here.”¹⁰⁹

This economic migration could be directed into legal channels like the H‑2A and H‑2B programs. But since deported immigrants are mostly barred from migrating legally, and the United States deported a massive population of nearly 4 million Mexicans between 2000 and 2022, many Mexicans are ineligible for these programs. One previously deported Mexican attempting to return to the United States in 2021 told the Wall Street Journal that he wanted to restart the construction business he owned before his deportation. “The economy is going to [react] very quickly in the United States,” he said in March 2021. “They are already reopening … Your work doesn’t yield much in Mexico. In the U.S. you work hard, but you see the benefits quickly.”¹¹⁰

Even if workers are eligible for the H‑2 programs, the programs have other restrictions that make them unavailable for many potential crossers. Every year since 2015, demand for the H‑2B program has exceeded its cap of 66,000. Although Congress has authorized the Department of Homeland Security to effectively double the cap each year since 2017, it has chosen not to admit the full amount authorized, preferring smaller increases. In 2020, it refused to increase the cap at all. As a result, some workers could not legally return to their jobs, and a portion of the seasonal jobs went unfilled. Such “capped-out” workers have a much greater incentive to cross the border illegally. One former-H-2B worker told the Philadelphia Inquirer, after the cap was reached, “Now I can’t get back in, and I am out of work.”¹¹¹ Although he insisted that he would not cross illegally, he stated that it would be surprising if others did not consider it. One employer reported that his H‑2B workers trapped in Mexico would call daily asking in tears, “How am I going to feed my family?”¹¹²

The other major issue is that both the H‑2A and H‑2B programs cover only seasonal or temporary jobs, not positions with no definite end date, and seasonal jobs make up a small minority of all U.S. jobs. Thus, immigrants with any position outside of seasonal or temporary ones can only cross illegally. At the height of the Bracero Era, year-round Mexican workers could enter as Bracero workers, and even after the program was restricted to seasonal workers, the agencies worked to admit year-round workers as legal permanent residents. But in 1990, Congress capped the number of legal permanent residents entering for unskilled jobs at 10,000, and the Departments of Labor, Homeland Security, and State have created an incredibly arduous process for year-round jobs that takes about three years to navigate—far too expensive and lengthy for an unskilled worker who could leave the position immediately after receiving a green card.

This analysis shows that guest worker visas can provide an important avenue for reducing border apprehensions by driving would-be illegal border crossers into legal temporary visas. The periods during which Bracero and H‑2 visas were issued in higher numbers provide critical lessons for the administration and Congress to understand how best to use guest worker visas to further reduce apprehensions—both for Mexicans and non-Mexicans—at a low cost to taxpayers. Perhaps the most crucial insight is that discretion matters. Top officials must tell lower officials that an important goal of these programs is to reduce illegal immigration, as INS officials did in the 1950s and again in the 1980s.

The three most important reforms that would increase the number of guest workers and foreign participation in guest worker programs are straightforward. First, the history of the Bracero and H‑2 programs clearly shows that the wage requirement is among the most harmful regulations and must be reformed. Markets unhindered by bureaucratic requirements, such as those that tie workers to individual employers, would ideally establish market wages. If the government insists on setting unique mandatory minimum wages, however, it should set the rate more realistically, based on the average rate for the skill level of the worker requested, as is done in the permanent residence programs. The government should also allow employers to deduct the market rate for housing and transportation from the wages paid to workers, since U.S. workers would not normally receive these benefits and mandating them inflates the cost of legally hiring workers. Housing is the largest upfront cost for new employers to join the H‑2A program and raises total compensation far above the average for similarly skilled and employed U.S. workers.

Second, the history of the Bracero program shows the importance of letting the market establish migration levels and not capping the numbers arbitrarily. In 1990, Congress capped the H‑2B nonagricultural seasonal visa program at 66,000 visas annually, and while it has often raised or waived the cap for some H‑2B workers, this cap has prevented the program from reaching the size of the H‑2A program for farms. Similar to the Early Bracero Era, a guest worker cap encourages illegal immigration by reducing the number of migrants who can legally migrate to the United States. In 2022, the number of approved H‑2B positions for summer jobs was more than triple the summer H‑2B visa cap (see Figure 8).¹¹³ Given that all these jobs are offered to U.S. workers first, the H‑2B cap only keeps seasonal or temporary jobs unfilled or, in many cases, filled by illegal immigrants. Congress should remove the H‑2B visa cap entirely.

Third, Congress should allow year-round employment under the H‑2 visas, as was permitted under the Bracero program until 1961. The H‑2 statute limits the program to temporary or seasonal positions, so this reform cannot be accomplished through merely administrative action but requires congressional action.¹¹⁴ This limitation effectively bars most animal farms from the program because dairies, livestock, and ranches require year-round operation.¹¹⁵ It is also fundamentally out of step with modern agricultural developments, as farms now plan multiple harvests to ensure income throughout the year. New techniques have also extended growing seasons, and indoor planting has removed climate as a once-insurmountable barrier to year-round cultivation. Another problem with the seasonal requirement is that as hiring becomes more difficult, many farmers are outsourcing hiring to farm labor contractors, and even though the work that the workers are performing is seasonal, the actual job for the contractor is permanent as they move workers from farm to farm.

The seasonal restriction is also misaligned with the latest changes in illegal immigration patterns, which have almost completely changed from seasonal, annual crossings to extended stays.¹¹⁶ With increased border security, it is now both too risky and too expensive for migrants to cross each year, so successful crossers primarily seek year-round employment. This is particularly true for immigrants from Central America since the lengthy trip across Mexico is not feasible on a yearly basis. Nonetheless, a United States Agency for International Development survey in December 2019 found that only 36 percent of Central Americans of any legal status in the United States planned to stay permanently, making a year-round guest worker program a viable option to address this flow as well.¹¹⁷

If Congress uncaps the H‑2B program and permits year-round employment under both the H‑2A and H‑2B programs, it is probable that Mexicans will receive the same disproportionate share of the new visas because there is no economic or legal incentive for employers to hire from countries farther away than Mexico. On the contrary, because government regulations require employers to provide transportation from an employee’s home country, there is actually a small disincentive to hire workers from more distant locations. More guest worker visas for Mexicans would likely cause a smaller reduction in Mexican illegal immigration than guest worker visas targeted to other nationalities. This is because Mexicans already feel that they have a legitimate chance of obtaining an H‑2A or H‑2B visa, while Central Americans do not.

Given the diminishing returns from Mexican H‑2 visas, the government should reserve some of any additional visas for workers coming from other countries in recent illegal immigration surges—primarily Central America’s “Northern Triangle” of El Salvador, Honduras, and Guatemala—but it should not reduce the number available to Mexicans, as that would result in additional illegal Mexican immigration. Congress should establish temporary incentives to recruit from each specific country. Workers from one country could be exempted from the existing H‑2B cap. Workers from another country could be made eligible to work in year-round agriculture, and workers from a third country could be made eligible to work in year-round nonagricultural jobs. This structure would ensure that employers would have incentives to recruit and hire workers who would likely consider illegal migration otherwise.

Government restrictions on migration cause illegal immigration, and a guest worker program is one way to relax those restrictions. This history of guest worker programs with Mexico shows that program success depends enormously on the rules that governments adopt and their enforcement mechanisms. In particular, limits on returning workers, caps, and bans on certain types of employment can lead workers to seek employment outside the legal system. These issues were a significant problem in the Early Bracero Era, the H‑2 Era, and especially the Title 42 Era. Equally important are regulations on wages and benefits. If total compensation is raised too far above market levels, employers will shift to employing illegal workers. This happened at the end of the Main Bracero Era when the Department of Labor adopted regulations designed to thwart foreign hiring. It is still a problem today.

Congress and the administration can implement a more successful guest worker program by removing the H‑2B cap, ending the requirement that the jobs be seasonal or temporary, and reforming the wage structure to better align with the market. Illegal immigration’s resurgence in the past few years should cause the administration to reflect on the need for better legal migration rules. The H‑2 programs have expanded in recent years with only marginal assistance from rulemakers. Employers have chosen to use them as the domestic labor pool has shrunk—partly from increased immigration enforcement—but rulemaking could incentivize more employers to hire lawfully and redirect immigrants away from illegal immigration. A shift toward legal migration would benefit employers, immigrants, and the country.

Bier, David J. “How Guest Workers Affect Illegal Immigration: Mexican Visas and Mexican Border Apprehensions, 1943–2022,” Policy Analysis no. 937, Cato Institute, Washington, DC, December 1, 2022.