Guest workers

most of the attention on the immigration bill that is now foundering in Congress is on the 11 million or so immigrants who live in this country without the government’s permission. The bill the Senate passed last year—the focus of the debate on so-called comprehensive immigration reform in Washington—would provide them with an arduous pathway to citizenship, a pathway that many Democrats view as the most crucial aspect of the legislation. Most Republicans, however, oppose the pathway.

For Massachusetts, though, the pathway debate is not as important as it is elsewhere in the country. The state has between 100,000 and 200,000 illegal immigrants, according to a study by the Pew Research Center’s Hispanic Trends Project, placing the Bay State well behind the country’s leaders: California, Florida, New York, and Texas.

But Massachusetts is among the leading states in welcoming guest workers each year, immigrants who come to work on temporary visas, then return to their home countries. And the good news for Massachusetts employers is that whatever happens to the Senate bill—and it’s almost certain now that it will not be enacted this year— there’s a decent chance that Congress could return in 2015, with a new Republican majority in both the House and Senate, and enact a scaled-back immigration bill that increases guest worker visas.

“If Republicans retake the Senate, I can see both chambers passing bills that would include lots of guest workers,” says Mark Krikorian, who leads the Center for Immigration Studies, a Washington think tank. “It would be loaded with guest workers.”

There are some potential roadblocks. First and foremost is Democrats’ willingness to go along. President Obama would have to sign the bill and he and congressional Democrats might not be willing to increase guest worker visas if Republicans refuse to do anything to help the illegal immigrants already in the country. Coupling the issues of guest worker visas and illegal immigrants has been a key tenet of their comprehensive approach.

Even if the Democrats lose their Senate majority, they could block any bill next year if they stick together. Meanwhile, there are a few high-placed Republicans who could put up roadblocks, including Charles Grassley, the Iowa senator who would chair the Senate Judiciary Committee if Republicans take the Senate. He’s a longtime critic of the guest visa program for high-tech workers.

But there are good reasons to think a guest worker bill could have legs. Most Republicans are eager to help American companies, but don’t want to give citizenship to people here illegally. Guest worker legislation fits the bill. Republicans can pass whatever they want in the House with their majority there; in the Senate, all a Republican majority will need is a few Democratic defections.

And Democrats have hinted they might be willing to compromise on the comprehensive approach to immigration reform that’s now been bandied about on Capitol Hill for a decade, with little to show for it. Earlier this year, President Obama told CNN that he was flexible on immigration and might not insist that illegal immigrants be placed immediately on a path to citizenship if Republicans were willing to give undocumented workers something short of it, such as work permits, and not ban them from ever pursuing citizenship.

If Obama is willing to make a deal with Republicans, it will be difficult for congressional Democrats and labor unions to say no. After all, they signed off on the Senate bill that passed last year, which would have increased the number of H-1B high-tech visas from 65,000 a year, with additional visas available to foreign graduate students studying in the United States, to a figure between 115,000 and 180,000, depending on the needs of the market. The bill also would have allowed foreigners who obtain doctoral degrees in science, technology, or engineering to apply immediately for permanent residence, allowing them to stay in the country indefinitely and apply to become citizens. And the bill would have increased the number of unskilled, seasonal H-2B visas for hotel, resort, and restaurant employees by exempting workers who come back year after year from the current cap of 66,000.

According to Labor Department statistics, Massachusetts ranks high among the states for hosting both high-tech guest workers and unskilled seasonal ones. This year, state employers brought 3,032 unskilled, seasonal workers on H-2B visas into the country, more than 41 other states. Massachusetts was eighth in the number of high-tech jobs certified by the Labor Department with 27,311.

Though the Labor Department slashed the number of guest workers it would allow to enter the country following the 2008 financial crisis, the numbers have been creeping back up. In 2007, the department certified 5,863 seasonal work positions and 75,364 high-tech positions for Massachusetts, though not all those jobs were filled because of the nationwide cap.

Labor unions wonder why companies insist they need the visas, since the unemployment rate remains high. In fact, only about half of high school and college students, the type of people well suited for unskilled seasonal work, are employed, near the record low. At the same time, a July report by the Census Bureau found that three in four Americans who graduate from college with a degree in science, technology, engineering, or math did not take a job in a related field.

Even so, the unions haven’t pressed the issue and have tried to trade increases in guest worker visas for other priorities, such as more green cards for immigrants who might become citizens and then join unions.

“In each of these cases, both for the high-tech workers and the seasonal ones, there’s no one organized to oppose it,” says Ross Eisenbrey, vice president of the Economic Policy Institute, a think tank in Washington.

In exchange for their support for last year’s Senate bill, unions did secure language in the legislation requiring employers to first try to hire American workers and to pay their guest workers the prevailing wage for their occupations. Eugenio Villasante, a spokesman for the Service Employees International Union in Boston, says unions took the best deal they could get. “There’s such a need for reform to allow people who’ve been here for years to live in peace and continue working that unions were willing to compromise on guest workers,” he says.

In 2012, the House passed a bill that would have increased the availability of green cards for foreigners studying science, technology, engineering, and math in the United States. Last year the House Judiciary Committee approved a bill to increase the annual cap on the H-1B high tech visas beyond where the Senate’s immigration bill would go, to 235,000. Neither advanced because Senate Democrats insisted on their more comprehensive approach.

Massachusetts employers argue that there simply are not enough Americans applying for the jobs they have. Paul Sacco, a lobbyist for the hotel industry in Massachusetts, says Americans don’t want to work in menial jobs anymore. He says hoteliers in the state might have to close without guest workers. “What I have observed is that people are more educated and they are less inclined to do this type of work.” he says.

Bob Luz, who leads the Massachusetts Restaurant Association, says the size of the tourist influx to resort areas is now so much larger than in decades past that there just aren’t enough people to fill restaurant jobs in the high season.

Better pay might make a difference, but employers have fought hard to limit increases, which are set by the Labor Department. When the department tried to increase pay for seasonal guest workers last year, employers successfully fought back. Led by the Edgartown hotelier Island Holdings, which operates the beachside Winnetu Inn Resort, they protested at the Labor Department’s Board of Alien Labor Certification Appeals that the wage increase—nearly 24 percent in the case of Island Holdings’ housekeepers—would have caused some of them to shut down. The board agreed, forcing the Labor Department to agree to more specific rules about when it can raise guest worker pay.

Meanwhile, employers have the upper hand in convincing lawmakers of the need for more H-1B technology visas. Todd Schulte, the executive director of Fwd.us, a group formed by Facebook chairman Mark Zuckerberg to rally support for H-1B visas, says it’s foolish for lawmakers to say no. “We’re saying to educated people, ‘Go start the next Silicon Valley, but don’t do it here.’”

It’s a powerful argument that could resonate in 2015 if Obama finds himself dealing with a Republican Congress. Instead of Democrats trying to convince Republicans to do something about illegal immigrants, it will be Republicans trying to convince Democrats to accept an immigration bill that doesn’t go nearly as far as they would like, while also assuaging their own conservative supporters that any increases in guest workers are tied to tougher border enforcement. If enough compromises are made, it could work.