LEGAL PATHWAYS

If border security is the fence protecting our nation, our legal immigration system provides the gates. These gates determine who, and how many, we invite inside. Congress feels an increasing urgency to update and improve these gates for three reasons. First, many who strongly supported creating a stouter fence did so not because they are opposed to immigration generally. Rather, they’re opposed specifically to illegal immigration. With the southern border secure, at least for now, they recognize the need for legal immigration reform.

Second, while it has many features designed to provide protections obviously unavailable with illegal immigration, there is widespread agreement that the legal immigration system is outdated, inefficient, and overly complex. Application backlogs for many of the almost 200 visa categories are often decades long and involve multiple agencies. The paperwork is so complex that many employers pay thousands of dollars to attorneys and visa facilitators to take care of this on their behalf. Paralyzed by partisanship, Congress has not enacted major changes to the types or numbers of temporary work visas in over 30 years. Much of the system remains paper-based or on woefully outdated computer systems.

The third reason Congress feels a growing urgency to refurbish our immigration gates is the unprecedented demographic shift we are now facing. As our population ages, the US faces a massive workforce deficit. The magnitude of the demographic shifts suggests that we will need 40 million more workers over the next decade than our native-born population can provide if we are too avoid a stalling economy and painful cuts to core programs like Social Security and Medicare. The proposals in this section focus on modernizing our gates to safely and efficiently welcome the workforce we choose, while ensuring American workers remain protected.

This third reason of a demographic crunch is also the reason much of the legal immigration attention in Congress, and the focus of this section of the brief, is on temporary work visas. Unlike workers who entered the country illegally, those who come here through a work visa program, or their employers, have complied with requirements designed to ensure they have a net positive effect on our country. For starters, all temporary work visa holders are prohibited by law from voting.

To screen out criminals, work visas deploy a three-layer system:

  1. Pre-Screening—Before a worker can even apply, the government must approve a petition by the US employer that initiates a vetting process of both the employer and employee using government databases.
  2. Consular Vetting—Workers with approved petitions undergo an in-person interview at a US embassy or consulate. Workers must provide their fingerprints, high-resolution photos, and their social media handles. The fingerprints and photos are run against FBI, Interpol and other databases.
  3. Port of Entry—When the worker arrives at a US port of entry (airport or official border crossing port), a Customs and Border Protection (CBP) officer makes the final decision on whether to let them in after using facial recognition to ensure the person matches the photo collected by the consulate.

To ensure temporary work visa holders have a net positive effect on our economy, under most visas they are required to pay federal, state, and local taxes, but they are not eligible for many federal benefits such as Social Security and Medicare. Each specific temporary work program also has its own features intended to ensure that these foreign workers will have a net positive impact on US workers. The American worker protections unique to each of the three largest temporary work visa programs are described later in this section.

CommonSense American has played an especially important role in identifying promising reforms for immigration gates leading to temporary work visas. At the request of the co-chairs of Congress’s bipartisan Commonsense Coalition, we organized weekly meetings of the participating congressional offices, several of the country’s leading immigration experts, and a diverse group of over ten crucial interest groups. Members of the group suggested, discussed, and rated over 70 legal immigration reform ideas. The proposals in this section of the brief focuses mostly on those ideas that attracted the broadest support within the group. The Commonsense Coalition co-chairs are eager to hear your views as they consider which proposals to include in a legislative package, if any.

The immigration reform group we’ve helped organize concluded that it would be very difficult politically to pass reforms right now that would come close to addressing the need for 50 million new workers over the next decade. Only one idea, suggested by two of the nation’s leading immigration economists, was seen as potentially meeting the scale of workers needed and perhaps politically feasible. The co-chairs are interested in the idea and would like your views.

We start with this big, new idea, called rotational labor. We then consider smaller-scale ideas for modernizing the legal immigration system. We conclude the legal pathways section with reforms to existing work visas that the group found most promising.

ROTATIONAL LABOR—A TWO-WAY GATE 

The rotational labor proposal would establish a 10-year state opt-in pilot of a new gate for migrant workers. The pilot would be restricted to a subset of US jobs with the most pronounced native worker shortages and modeled on the existing J-1 visa program. The visa to work in these jobs would be valid for up to three years. After a year back in their home country, workers could reapply for another temporary work permit. Rotational labor visa holders would not be permitted to bring family members with them.

As the name suggests, the rotational labor gate would be intentionally two-way (it’s sometimes called a circular labor program). The proposal would create two primary mechanisms to ensure that workers return to their home country at the end of their two- or three-year work permits.

First, it would require an agreement between the US and any other nation that wants its people to have access to this legal pathway. The sending country would need to agree to certain conditions, including helping verify that its citizens seeking to come here do not have a criminal record and that they return to their home country at the end of their work permit.

A second mechanism aimed at ensuring rotational labor works as a two-way gate is the creation of a regulatory framework for organizations that act as intermediaries between foreign workers seeking to come to the US and US employers, similar to the role sponsors play in the current J-1 visa program. The US government would regulate these intermediaries, a core function of which would be to ensure that the workers they place in US jobs return to their home countries at the end of their visas.

The regulatory framework would help foster an ecosystem of organizations serving one or more of four functions in addition to assuring foreign workers return to their home nation:

  1. Recruit—Identify eligible foreign workers with no criminal record interested in the specific categories of US jobs eligible for the rotational labor pilot.
  2. Prepare—Train the workers in their own country for the job they are seeking.
  3. Place—Match the trained workers with jobs in US businesses that have shown unsuccessful attempts to recruit sufficient US workers.
  4. Protect—Ensure that workers are paid and treated in accordance with specified labor standards to prevent exploitation. With the help of the sponsoring organization, temporary workers may change employers up to three times to work with other eligible employers in the same job and state.

To be licensed as a rotational visa program sponsor in the pilot, organizations would be responsible for ensuring that workers are adequately skilled and prepared, that the employer and the job are properly vetted, and that workers are reliably returned to their home country.

The legislation for the pilot would identify approximately 15 job types with the most pronounced shortages of US workers eligible for temporary rotational labor permits. The proposal also calls for Congress to evaluate and refine the program twice in the 10-year pilot.

Temporary rotational labor permits would be available only in states that explicitly opt into the pilot. States could also petition for visas for jobs not included on the initial list, provided they demonstrate pronounced shortages of US workers for those jobs in their state.

The federal government would retain its regulatory oversight in all states that opt in. Funded by rotational labor visa fees, the US oversight functions would include confirming no criminal record for applicants, ensuring that employers had first tried to recruit US workers, labor standard enforcement to protect rotational workers from exploitation, and ensuring they return to their home country at the end of the visa.

The Case For 

Rotational labor supporters argue that the biggest obstacle to meet the need for new workers over the next decade is political. No one wants the dire consequences of a struggling economy, less job growth for US workers, and excruciating cuts to core programs like Social Security and Medicare. Still, labor mobility proponents acknowledge that bringing in the number of new foreign workers needed to avoid those dire outcomes raises legitimate concerns. That is an important reason advocates suggest a 10-year pilot focused on only the jobs where there are the most pronounced shortages of US workers. Advocates suggest that rotational labor has sufficient promise of addressing the legitimate concerns in new and effective ways to warrant a pilot.

 

Addresses Economic and Jobs Concerns

First, proponents argue that the rotational labor system can more effectively address concerns about the effects of foreign workers on US workers and the economy. In fact, the economic benefits to American citizens (including job creation) would be enormous, they argue, and the main reason to pass rotational labor legislation. Advocates make two main arguments for the net-positive economic effects that are generally made in favor of immigration, but argue that they are even larger because rotational labor is more focused on our economic needs:

  1. Creates More Native Jobs— Advocates cite research showing that the scaling effect of foreign workers is many times greater than the substitution effect. In other words, hiring foreign workers for certain jobs for which they can’t find US workers allows businesses to scale up and hire more US workers for other jobs that US workers are more interested in (see What the Evidence Says—Jobs and the Economy above). Because legal, rotational labor directs foreign workers more intentionally and systematically into jobs with the most severe US worker shortages, supporters argue that the scaling effect is especially large and the substitution effect is especially small. They argue that the state opt-in feature further focuses foreign workers where they are most genuinely needed. States that conclude rotational labor would have a negative effect on their state’s native workers can simply not opt in. Supporters argue based on this evidence that the proposed state opt-in rotational labor program would create jobs for US workers far more than it would displace them.
  2. Produces More in Taxes than What is Used in Services— Supporters argue that this legal gate would make the net positive effect of foreign workers paying more taxes than they cost in services even more positive. Supporters cite the evidence that immigrants today pay four times more in federal taxes than they cost in federal benefits like Social Security, Medicare, and social welfare programs like SNAP (food stamps). Supporters further argue that much of the net negative effect of services costing more than taxes paid at the state and local levels under the current system would be addressed by rotational labor. Because it only brings in immigrants who have already been matched to a US job, a far higher percentage will be paying state and local taxes and far fewer needing housing and food aid than was the case when so many immigrants entered the country illegally or were allowed to enter by filing an asylum claim. Local governments would not bear educational costs either, because the visas would be offered only to the worker, not the family (see What the Evidence Says—Taxes vs. Government Services above).

 

Addresses Security Concerns

Rotational labor supporters argue that it would be more effective at preventing criminals and those who pose national security risks from entering the country than the current system for two reasons:

  1. Better Screens out Criminals—Supporters argue that while crime rates among all immigrants, including undocumented immigrants, are already significantly lower than among the native-born population (see What the Evidence Says—Crime above), those rates would be even lower with rotational labor because both the sending country and the intermediary organization bringing the workers here would be held responsible for ensuring that those who applied for the visa had no criminal record and posed no national security risk. Then, the US government would fully vet all applicants as usual. Foreign countries and intermediaries who failed to fully vet the applicants would be cut from the program.
  2. Better Secures the Border—Proponents argue that rotational labor would also make the border more secure. History shows, they argue, that a stout fence alone cannot long withstand the enormous economic pull of immigrants due to a lack of workers in the US for certain jobs and the powerful push of immigrants from sending countries with little economic opportunity. Since we are facing a far stronger push and pull of demographics than the US has ever faced before, they argue that the need to provide legal alternatives to illegal immigration will be even greater than in the past. Supporters argue that rotational labor will take the pressure off the border because law-abiding immigrants who simply want to work here will much prefer this legal pathway. Reducing illegal immigration at the border would also allow border enforcement agents to focus more on defeating cartels’ ability to smuggle drugs and engage in human smuggling and trafficking at the border.

 

Addresses Concerns with Temporary Workers Staying

Advocates argue that rotational labor better addresses a substantial problem: existing temporary work visas often prove not to be temporary. They acknowledge the evidence that nearly half of immigrants currently in the US came here legally but overstayed their visas. Because sending countries and sponsoring organizations lose eligibility if they don’t reliably verify temporary workers’ return, proponents argue that rotational labor is a far more lawful and orderly way to bring in temporary workers than existing temporary work visas.

 

Help Foreign Workers and their Home Countries

Supporters argue that rotational labor is a win-win-win economically because it benefits the US, foreign workers, and their home countries. Supporters note that the strong push of workers from less developed countries stems from the enormous economic benefits they obtain by working in the US. Supporters cite research findings that the same workers are typically three to six times more economically productive in a developed country like the US than in their home country.

Supporters note that the economic benefits extend beyond the workers themselves. Many foreign workers send money home to substantially improve their families’ quality of life. For many poor countries, these remittances are a major source of economic development. Rotational labor can also fuel economic development in poorer countries by enabling temporary workers to return with capital and skills to start successful businesses. One study found that if rich and poor countries together engaged in as much rotational labor as there is demand for, it would create 10 times more economic development than all international development programs combined to reduce global poverty.

 

Success in Other Developed Countries

Rotational labor supporters cite the success of other developed countries that have already implemented rotational labor to address aging populations. For example, they cite New Zealand’s, South Korea’s, and Germany’s recent experiences.

Advocates acknowledge that many rotational labor programs in other developed countries have not been successful. They argue, however, that the proposed US program draws on the lessons of those failures. Advocates also note that the proposed 10-year pilot, with two rounds of review and revision based on experience, will allow the US to learn from its own experience to make the program more effective.

 

Economic Gains Create Resources and Incentives for Everyone to Benefit

Advocates argue that the combined economic benefits are enormous and generate the resources and incentives needed to make the program work as intended. US employers will benefit hugely, be able to scale to hire more US workers, and in the process grow the economy and sustain government programs for all Americans. They argue that even after appropriate fees to fund the needed increase in US regulatory capacity and sufficient profits for intermediaries to incentive their work, there remains more than enough economic value for rotational workers to experience a life-changing increase in income that also benefits their families and home countries.

Advocates observe that the primary implication of following opponents’ arguments that the system shouldn’t be tried because it is unfair to rotational workers is to hurt rotational workers. If rotational workers would prefer to work here without the prospect of gaining fuller or more permanent US status to increase their income several fold, it is paternalistic to argue that the opportunity to make that choice should be withheld from them.

The Case Against

The case against rotational labor is made by those who think it’s a sound idea conceptually but are skeptical that it can be implemented effectively and by those who outright oppose the idea.

 

Implementation Critics

The most broadly shared criticism of rotational labor is that the idea is simply too new to know if it can be implemented successfully. The provisions for better addressing the concerns associated with temporary foreign workers may sound good on paper, they argue, but are extremely challenging to implement effectively in the real world. They observe that rotational labor requires many hard things to work simultaneously, and that several of them have either never been attempted at this scale in the US or have failed when tried elsewhere, providing compelling evidence that the implementation challenges overwhelm efforts to address them. They note that Japan’s and Australia’s experiences are particularly instructive. Critics argue that several of the requirements pose real risks on their own and that those risks compound when stacked together. They note specific challenges for the sending countries, the intermediaries, and the US in executing their roles.

  1. Sending Countries—Critics observe that many nations likely to send rotational workers have limited or unreliable infrastructure for the records and information required. Opponents note that the US already struggles to obtain timely and complete criminal-history information from many nations in other immigration contexts. They suggest the records and monitoring limitations would likely apply to assuring a rotational worker returned.
  2. Intermediaries—The idea of intermediaries who can be more readily regulated because they have a financial interest in complying with the requirements to remain eligible sounds nice, but critics observe that the experience in many other countries that have tried it shows the challenges in practice. They observe a pilot would tend to either be too small to foster the needed intermediary ecosystem of organizations, or become too big too fast, opening the door for unscrupulous intermediaries.
  3. US—Critics note that the US already has a complicated immigration system whose information, oversight, and enforcement are problematic at many levels. A rotational labor program would add new complexities. They suggest that the ‘too little or too big’ problem for the pilot also applies to US regulators. If it’s too small, it may not generate sufficient fees and will be hard to justify developing the necessary enforcement and oversight capabilities for something that may turn out to be temporary. If it gets big enough to justify building out those capabilities within the ten-year pilot, they suggest that it will likely be too big, too fast, for the US regulatory function to keep up with. Critics are particularly concerned that the limits of implementing effective regulatory oversight will result in placing foreign workers with employers who haven’t genuinely tried to recruit US workers and exposing foreign workers to exploitation.

 

Outright Opponents

Outright opposition to rotational labor often splits into two opposing arguments: those who support immigration generally and those who oppose it.

  1. Immigration Supporters—Many outright opponents of rotational labor who support immigration generally reject rotational programs on moral grounds. By design, it would create a category of people who work in America, pay taxes here, contribute to American communities, but are barred from the path to permanent status that prior immigrant generations had. They would be welcome to do the labor but not to belong. To these critics, that is not a more orderly version of immigration but its inversion — the deliberate construction of a permanent underclass of disenfranchised workers whose only function is to be useful and then to leave. The exploitation that follows is not an implementation flaw but a design feature. When a worker’s right to stay depends on an employer’s continued sponsorship, complaints about wage theft or dangerous conditions are filed at the cost of the worker’s livelihood and lawful presence. That power asymmetry has produced documented patterns of abuse in temporary worker programs at home and abroad, including in Australia’s “triple win” PALM scheme. Sponsoring intermediaries and limited employer mobility mitigate the harm but do not remove the underlying coercion. Their deepest objection is to what rotational labor says about America itself. The US has historically welcomed immigrants as future fellow citizens — workers who come, contribute, raise children who are Americans, and become Americans themselves. Rotational labor inverts this: it accepts the labor but refuses the membership and forbids workers from bringing their families, even temporarily. If the US needs workers in these jobs, opponents argue, it should welcome them as immigrants — with green cards and the dignity of belonging, not as disposable inputs to an economy that takes their work and sends them home.
  2. Immigration Opponents—Many opponents of rotational labor who oppose immigration generally reject the proposal at a fundamental level: they challenge the premise that the demographic shift requires international workers at the scale advocates contemplate. They make two reinforcing arguments — one economic, one about national identity.The economic argument holds that decades of abundant foreign labor have been a primary driver of stagnant wages and degraded working conditions in lower-paid occupations. Continuously supplied with workers willing to accept low pay, employers face little pressure to raise wages, improve workplaces, or invest in productivity-enhancing automation. Rotational labor would extend this pattern in precisely the occupations targeted. Restricting foreign labor would mean slower GDP growth, opponents acknowledge — but they argue the trade-off is worth it. A tighter labor market would deliver higher wages for working-class Americans, less income inequality, more dignified work, and stronger incentives for technology investment. Proponents’ framing — mass labor importation or economic decline — conceals the real choice: between a larger economy that benefits employers and capital owners and a smaller, fairer economy that benefits American workers.The identity argument holds that America can absorb meaningful immigration only at a manageable pace. The scale needed to fill the demographic gap — likely millions per decade — would exceed what schools, neighborhoods, civic institutions, and labor markets can absorb, even when workers are nominally temporary. The objection is not about any particular sending population but about scale and pace. Like implementation critics, these opponents argue the US government will do no better job of ensuring that rotational labor employers tried to recruit US workers than it does with existing temporary work visas. And they fear “temporary” workers will not stay temporary: just as with the millions already here without status, opponents expect immigrant advocates will eventually seek to grant them permanent legal status, backed by powerful corporate allies who want to keep their cheap labor force.

 

Failure in Other Developed Countries

Rotational labor critics and opponents of all kinds cite numerous instances in which rotational labor programs in other developed countries have failed. For example, they cite Japan’s, Australia’s, and Singapore’s recent experiences.

** Foreign Rotational Labor Case Studies**