U.S. employers in various industries argue that they need to hire foreign workers to perform low-skilled jobs. A threshold question about importing temporary lower-skilled workers, sometimes referred to as guest workers, is whether U.S. employers need foreign workers for lower-skilled positions, or whether there is a sufficient number of available U.S. workers who could fill these jobs. The H-2A and H-2B programs are administered by the Employment and Training Administration (ETA) of the Department of Labor (DOL) and U.S. Citizenship and Immigration Services (USCIS) of the Department of Homeland Security (DHS). While there are many differences between the H-2A agricultural worker program and the H-2B nonagricultural worker program, the process of importing workers under either program entails the same steps. INA provisions on the admission of H-2A workers state that an H-2A petition cannot be approved unless the petitioner has applied to DOL for certification that
(1) there are not sufficient workers who are able, willing, qualified … and available at the time of application for a visa and admission to the United States and at the place where the alien is to perform such skilled or unskilled labor, and 
(2) the employment of such alien will not adversely affect the wages and working conditions of workers in the United States similarly employed. The Obama Administration initially retained both the 2008 DHS and DOL final rules on the H-2B visa. As noted above, this rule is not currently in effect. The J-1 visa is for individuals participating in work- and study-based exchange visitor programs and encompasses a variety of work-related programs. Among the positions they hold are H-2B-like seasonal jobs at resorts and amusement parks. In May 2012, DOS published a second interim final rule on the SWT program, most of which became effective that month. Labor advocates argue that the program provides too few protections for workers. Some bills would amend INA provisions on the H-2A visa, while others would establish new temporary agricultural worker programs as alternatives to the H-2A program. Still other proposals would couple a legalization program for agricultural workers either with H-2A reform, as in the traditional AgJOBS formulation, or with other changes to current law on agricultural labor. Policy Considerations

Generally speaking, as discussed above, guest worker programs try to achieve two goals simultaneously: to be responsive to legitimate employer needs for labor and to provide adequate protections for U.S. and foreign temporary workers. Intended to protect job opportunities for U.S. workers, labor certification entails a determination by DOL of whether qualified U.S. workers are available to perform the needed work and whether the hiring of foreign workers will adversely affect the wages and working conditions of similarly employed U.S. workers. A main difference between the DOL H-2A and H-2B rules issued by the George W. Bush Administration in 2008 and the rules issued by the Obama Administration in 2010 and 2012 concerns implementation of the labor market test. Legislative guest worker proposals in recent Congresses have also incorporated various forms of labor attestation. The 2011 DOL rule on H-2B wage rates has been highly controversial, with some critics arguing that the new wage requirements will make the H-2B program prohibitively expensive. Like the H-2B program, other capped temporary worker programs in current law have fixed statutory numerical limits. Adjustment of Status of Guest Workers

The issue of adjustment of status, or the change of immigration status to legal permanent resident (LPR) status in the United States, arises in connection with guest worker programs. Appendix C. H-2A and H-2B Visa Issuances
Appendix D. DHS and DOL Regulations on H-2A and H-2B Nonimmigrants and their Employment in the United States 
H-2A Regulations: DHS 
The 2008 DHS final rule on the H-2A visa made various changes to prior regulations.
U.S. employers in various industries argue that they need to hire foreign workers to perform lower-skilled jobs, while others maintain that many of these positions could be filled by U.S. workers. Under current law, certain lower-skilled foreign workers, sometimes referred to as guest workers, may be admitted to the United States to perform temporary service or labor under two temporary worker visas: the H-2A visa for agricultural workers and the H-2B visa for nonagricultural workers. Both programs are administered by the Department of Homeland Security's U.S. Citizenship and Immigration Services (DHS/USCIS) and the Department of Labor's Employment and Training Administration (DOL/ETA).
The H-2A and H-2B programs—and guest worker programs broadly—strive both to be responsive to legitimate employer needs for labor and to provide adequate protections for U.S. and foreign temporary workers. There is much debate, however, about how to strike the appropriate balance between these twin goals. Under the George W. Bush Administration, both DHS and DOL issued regulations to streamline the H-2A and H-2B programs. The Obama Administration retained the DHS rules, but rewrote the DOL rules. Arguing that the latter provided inadequate protections for workers, it issued a new DOL final rule on H-2A employment, which became effective in March 2010. The Obama Administration also issued a new DOL final rule on H-2B employment in 2012 and a DOL final rule on H-2B wage rates in 2011, but neither of these rules is currently in effect.
Bringing workers into the United States under either the H-2A program or H-2B program is a multi-agency process involving DOL, DHS, and the Department of State. As an initial step in the process, employers must apply for DOL labor certification to ensure that U.S. workers are not available for the jobs in question and that the hiring of foreign workers will not adversely affect U.S. workers. The labor certification process has long been criticized as ineffective, with employers complaining that it is burdensome and unresponsive to their labor needs and labor advocates arguing that it provides too few protections for workers.
The H-2A program and foreign agricultural workers in general have been a focus of congressional attention in recent Congresses. Proposals have been introduced as recently as in the 112th Congress that would have amended current law on the H-2A visa, while others would have established new temporary agricultural worker programs as alternatives to the H-2A program. Still other proposals would have coupled a legalization program for agricultural workers with either H-2A or other agricultural labor-related reform. DOL's recent rules on H-2B employment and wages also have been subjects of congressional interest.
Guest worker proposals may contain provisions on a range of component policy issues. Key policy considerations include the labor market test to determine whether U.S. workers are available for the positions, wages, and enforcement. The issue of adjustment of status, which means the change to legal permanent resident (LPR) status in the United States, may also arise in connection with guest worker programs.
While the discussion of current guest worker programs in this report focuses on the H-2A and H-2B visas, it also covers the Summer Work Travel (SWT) program, the largest of several programs under the J-1 visa for participants in work- and study-based exchange visitor programs. The SWT program is particularly relevant because participants work largely in unskilled jobs, including H-2B-like seasonal jobs at resorts and amusement parks.