This survey describes different programs available in thirteen countries* as well as a proposed directive of the European Union (EU), the Association Agreement between the European Union and Turkey regarding migrants of Turkish origin, and the Multilateral Framework of the International Labour Organization on the admission of guest workers. The individual reports cover laws, regulations, and directives, in addition to statistical and other relevant information on guest worker programs.
The reports provide a general overview of foreign immigration systems and address eligibility criteria for the admission of guest workers and their families, guest worker recruitment and sponsorship, and visa conditions. The reports specifically discuss the tying of temporary workers to their employers in some countries, the duration and the conditions that apply to switching employers, the terms and the renewability of guest worker visas, and the availability of a path to permanent status. The reports further address the existence of caps or quotas on guest worker visas, and the consideration of a market-based method for their establishment. In addition to individual reports a general bibliography of selected, recent English-language materials on immigration policies is included.
II. Guest Worker Policies
The sovereign right of all states to develop their own labor migration policies has been recognized under the International Labour Organization (ILO) Multilateral Framework which provides for general guidelines for the implementation of such policies in a coherent, effective, and fair way. The immigration policies adopted by the countries surveyed are therefore varied as they reflect their individual socioeconomic conditions and needs.
Almost all countries surveyed give preference to the admission of highly-skilled workers. As a country with a 1.34 billion population and abundant labor resources, China imposes restrictive controls over low-skilled workers’ access to the labor market. The emerging market countries of Brazil and Mexico, similarly, do not have specific programs for low-skilled workers. Foreigners from countries that share a border with Mexico, however, may be admitted based on a Visitor Border Worker visa. Other than Brazil, China, and Mexico, all countries surveyed either currently or in the past implemented some type of guest worker program. Australia has a small number of programs for low- or semiskilled workers in different sectors or parts of the country. A seasonal worker program, introduced in July 2012 (following a four-year pilot program), involves arrangements with specific countries and special visa conditions. In addition, companies in the resources sector (e.g., mining companies) can enter into Enterprise Migration Agreements with the federal government as part of a program aimed at easing access to the country by employer-sponsored, semiskilled, temporary workers in order to address labor shortages. A further Regional Migration Agreement program is designed to assist regional labor markets that are experiencing acute skill and labor shortages, particularly in remote areas. Young people from certain countries are also able to work in Australia for limited periods as part of working holiday programs. Additionally, in accordance with special reciprocal arrangements, New Zealand citizens are permitted to live, study, and work in Australia indefinitely on special temporary visas.
Immigration is a shared competence between the European Union and its twenty-seven Member States. EU Members have the right to determine the number of admissions of third-country nationals in their territory for employment purposes, including temporary workers, and are also responsible for integration policies concerning third-country nationals who reside legally within their territory. Currently, guest worker programs are dealt with by the EU Member States. In 2010, the European Commission adopted a Proposal for a Directive on Seasonal Employment. If implemented, the proposal would establish a fast-track procedure and a single residence/work permit for seasonal workers. The proposal would introduce a multiseasonal permit to allow the same workers to enter the EU market in subsequent seasons. EU Members would be required to accord to seasonal workers certain rights regarding working conditions, including health and safety requirements, access to social security, and a statutory pension, similar to the rights accorded to their nationals.
Currently, the EU Member States surveyed (Germany, Spain, and the United Kingdom), were found to have varied guest worker programs, reflecting their socioeconomic differences. During the 1960s, Germany recruited and admitted large numbers of foreign workers, mainly from Turkey. In its treatment of its Turkish residents Germany is bound by the 1963 Association Agreement between Turkey and the European Economic Community. In accordance with this agreement, Turkish nationals and their families who have lived and worked in any EU Member State for one year may renew their residence permit if the same job is still available and may renew their residence permit after three years of work in a Member State to find any kind of work. The Agreement’s expansive interpretation by the European Court of Justice has resulted in the granting of permanent status to the Turkish immigrants in EU Member States, and particularly in Germany.
German immigration policy shifted in 1973 towards limiting immigration to skilled or highly-skilled workers and restricting admission of unskilled workers for short periods, preventing them from becoming permanent residents or bringing their families. Germany most commonly used temporary worker programs which facilitated the admission of guest workers from Eastern Europe; these, however, have become largely obsolete since 2011 due to enlargements of the European Union.
Like Germany, the United Kingdom does not appear to currently have a specific guest worker program for low-skilled workers. Admission into the UK for temporary workers is provided for by Tier 5 of the points-based immigration system and is open to workers in any one of the following six categories:
- creative and sporting
- charity workers
- religious workers
- government authorized exchange programs
- international agreements
- youth mobility scheme
In contrast with Germany and the UK, Spain has seen a significant increase in the entry of low-skilled immigrants from Africa, Latin America, and Eastern Europe, arriving since the 1990s with a temporary or seasonal work visa. In order to adapt the immigration laws to the new immigration reality and labor market, Spain enacted a comprehensive immigration law in 2000. The inflow of immigrants into Spain, however, has considerably decreased since 2010 due to the economic crisis, high unemployment, and financial troubles that the country is still trying to overcome.
Having been considered as the second most frequent migrant destination country in the world following the United States, Russia reportedly employed 9.1 million guest workers in 2012, mostly from the former Soviet states, China, Southeast Asia, sub-Saharan Africa, and Eastern Europe. According to news reports about 35% of all migrants in Russia are concentrated in the city of Moscow. The significant influx of both legal and illegal immigrants into Russia has been said to have created intense pressure on the government and the Russian population in the areas of social protection, health care, residential living, and employment. In an effort to address the problem, a “Concept of the State Migration Policy for the Period Until 2025” was approved on July 13, 2012, with the aim of strengthening control over migration and migrants while simplifying procedures for legal labor migration.
Israel, Japan, and South Korea were found to incorporate into their immigration policies a preference for ethnic compatriots. South Korea grants H-2 visas for ethnic Koreans with foreign citizenship. As compared with nonethnic Koreans on nonprofessional employment E-9 visas, H-2 recipients enjoy both a path to permanent residence as well as the ability to invite family members, depending on their employment period.
Whereas South Korea’s H-2 visa is essentially a working visa and is subject to various limitations including industrial field restrictions, Japan grants long term residence status without employment restrictions to descendants of Japanese emigrants to South American countries, such as Brazil and Peru. Japan also accepts low-skilled migrants of non-Japanese descent under a technical trainee status of residence and admits foreign nurses and caregivers from countries with which it has concluded Economic Partnership Agreements (EPAs).
Similar to the Japanese compatriot visas, Israel’s Oleh visas, issued in accordance with the Law of Return for Jews and their families, are not intended as work visas but rather as immigrant visas that grant permanent residence. Immigration of persons who do not qualify under the Law of Return has been limited to exceptional circumstances, including the admission of guest workers based on market needs in specific areas.
Mexico grants a Visitor Border Worker status to workers from countries that share a border with Mexico, currently authorizing migrantsfrom Guatemala and Belize who have a job offer to work in the Mexican states of Campeche, Chiapas, Quintana Roo, and Tabasco.
III. Labor Sector Restrictions
Most countries limit the employment of guest workers to specific labor sectors based on market needs.
Australia’s Seasonal Worker Program, for example, designates horticulture, tourism, sugarcane, cotton, and aquaculture as sectors where visa recipients can be employed. The use of market-based measures is further shown in the fact that for some of these sectors, such as horticulture, workers can be employed countrywide, while for the latter four sectors employment is authorized only in limited locations. Both Australia’s Enterprise Migration Agreement and Regional Migration Agreement programs require that there be a need for foreign workers to fill either skilled or semiskilled positions due to a shortage of Australian workers.
Canadian programs for the hiring of foreign low-skilled workers include the Low Skilled Worker Pilot (C & D) Program (general and agricultural stream), Live-in Caregiver Program, and Seasonal Agricultural Worker Program.
The EU has similarly identified specific sectors in need of seasonal workers. These include agriculture, horticulture, and tourism. Although not expressly reserved by Mexican law, Guatemalans who are temporarily employed in Mexico under Border Worker visas are usually employed in agriculture, construction, and services. In Norway, forestry, agriculture, the fish processing industry, plant nurseries, and the restaurant and tourism industries are typical seasonal industries.
In South Korea, H-2 visas for ethnic Koreans are limited to industrial fields such as agriculture, small- or medium-sized manufacturing, construction, or the service industry. E-9 visas in Korea are similarly limited to industries that suffer labor shortages, such as agriculture and stockbreeding, fisheries, construction, and manufacturing.
In Israel, employment permits are issued in consideration of the needs of the labor market in specific labor sectors and geographical regions and currently include nursing care, agriculture, construction, welding and industrial professions, hotel work, and ethnic cookery.
IV. General Eligibility Requirements
Australian programs generally require guest workers to meet standard health and character criteria, sign an Australian Values Statement, be invited by an approved employer, and be outside Australia throughout the visa application and approval process. Conditions including age, acquisition of health insurance, and competence in English depend on the type of the program under which the migrant enters the country.
In Canada, similar to Australia, each program has its own eligibility criteria for both employees and employers. General admission requirements, however, include a commitment to leave Canada at the termination of employment, the financial ability to take care of oneself and family while in Canada, not having a criminal record, not being a danger to the security of Canada, enjoying good health; not intending to work for an ineligible employer, and not having worked in Canada for one or more periods totaling four years after April 1, 2011.
According to a proposal for a directive on the Conditions of Entry and Residence of Third-Country Nationals for the Purposes of Seasonal Employment, adopted by the European Commission in 2010, admission of guest workers would require a valid work contract or a binding job offer; a valid travel document; proof of health insurance; and proof of having adequate accommodations and resources to ensure the worker will not become dependent on the States’ social assistance system. Additionally, EU Members have the right not to admit anyone who is a threat to their public security or health.
Spain, an EU Member state, currently requires visas applicants to be sixteen years of age or older; submit a certificate of good health; not have a criminal background in Spain or any other country of residence in the last five years; and submit a labor contract that guarantees employment for the period of time the foreign worker was issued the work authorization. In Norway there are no formal qualification requirements for a seasonal work permit, but the applicant must be at least eighteen years old and have a concrete offer of employment that contains a job description as well as an indication of the number of work hours per week, the hourly wage, and the duration of the offer of employment.
Israel requires guest worker applicants to submit a medical certificate based on a medical examination undertaken within three months prior to arrival in Israel to ensure that the worker was not diagnosed as a carrier of tuberculosis, hepatitis, gonorrhea, or aids. A foreign worker visa will not be issued unless the employer holds a permit allowing him/her to employ the worker.Among the eligibility requirements in South Korea for H-2 visa holders is attendance at employment training conducted by the designated institution, while the requirements for E-9 nonprofessional employment visas include security clearance and Korean language proficiency.
V. Recruitment and Sponsorship
According to the ILO Multilateral Framework on Labour Migration, governments in both origin and destination countries should consider licensing and supervising recruitment and placement services. The Multilateral Framework further recommends ensuring that recruitment fees are not borne by migrant workers. The Multilateral Framework recognizes that policies requiring employer sponsorship as a prerequisite to the admission of migrant workers are legitimate means by which states may exercise their sovereign right to regulate migrant labor.
To participate in the Seasonal Worker Program, Australian employers must be approved by the Department of Education, Employment and Workplace Relations as “Special Program Sponsors.” Approved employers enter into a Special Program Agreement that sets out the terms and conditions of the program and includes monitoring and reporting obligations. Recruitment, however, is regulated by individual memoranda of understanding that are signed between the Australian government and each participating country, which set out the government agency responsible for providing or coordinating recruitment services in that country. Employer sponsorship is not required for Working Holiday visas. For the Australian subclass 457 visa an employer with a labor agreement is considered an approved sponsor and does not need to apply separately for sponsorship approval.
The Seasonal Agricultural Worker Program in Canada is administered by the Canadian Government in accordance with bilateral agreements with Mexico and particular Caribbean countries. Recruitment of workers is conducted by foreign governments. Under the Canadian C & D pilot project, recruiting is done privately, often through recruitment agencies based in Canada or abroad.
A foreign employee in Norway must, as a general rule, have a concrete offer of employment in Norway in order to apply for a residence permit there. A set form must be used to make the offer and be signed by both the employer and the employee. The work must generally be continuous, full-time employment, but can be divided among several employment offers from the same or different employers. A prospective employer can apply for a permit on the seasonal worker’s behalf if the worker authorizes the employer to do so in writing.
In Israel, employment is generally not handled through manpower companies (MCs), except in the construction trade where workers can only be employed through MCs. Employment in the nursing trade may be facilitated by special companies called “nursing companies.” Recruitment fees do not apply to recruitment in Israel and are capped for recruitment abroad.
VI. Visa Conditions
A. Tying of Guest Workers to Employers
In accordance with the ILO Multilateral Framework the extent to which a worker’s permitted stay is tied to the sponsoring employer is within the prerogative of sovereign states to regulate, within the parameters of the fundamental principles of workers’ rights and the conditions of employment.
Various countries surveyed were found to tie guest workers’ visas to the specific employer that employs them. In Australia, seasonal workers are limited to working for their sponsoring employer. In Norway permits issued to unskilled employees similarly apply to specific work for a specific employer. Like Australia and Norway, Russia prohibits guest workers from changing their employer and place of residence. Guest workers in Russia are also subject to mandatory residence registration procedures with local police.
In a 2006 leading decision by Israel’s Supreme Court, however, the Court determined that the tying of a foreign worker’s residence permit to a specific employer constituted a violation of the requirement of proportionality guaranteed under Israel’s Basic Law: Human Dignity and Liberty. New procedures adopted in an effort to comply with the Court’s decision removed any limitation on the number of transfers a worker could make among employers in assigned areas of work and further diminished the ability of an employer to block the transfer of a worker to another employer.
Like Israel, several countries were found to allow workers to switch employers, subject to compliance with certain procedures. In China, for example, although an employment permit is valid only when used in the geographic area specified in that permit and aliens must work for the employer indicated on the employment permit, the alien may switch employers within the same geographic area upon approval of altering the employment permit. Undertaking employment outside the area specified by the permit or within the area but for a different employer and in a different occupation requires a new employment permit.
South Korea’s H-2 foreign workers are not tied to their employer and can change employer upon approval of their application, which must be submitted within one month from termination of employment or the expiration of the employment agreement. E-9 foreign workers can similarly work only at the designated working place unless they receive permission from the Minister of Justice.
B. Visa Terms
Australia’s Seasonal Worker Program visas may apply for fourteen weeks to six months, in addition to four extra weeks to facilitate travel arrangements. Working Holiday visas allow visa holders to do any kind of work over the course of their twelve months in Australia, but they cannot work for more than six months for any one employer. Visas issued under labor agreement programs may be valid for up to four years, depending on the terms of the relevant agreement.
Canadian C & D Pilot Program visas are valid for twenty-four months but can be extended, whereas employment under the Seasonal Agricultural Worker Program can last for up to eight months between January 1 and December 15, subject to a minimum of 240 hours of work within a period of any six weeks or less. Work permits for the Canadian Live-in Caregivers Program are for up to four years plus three months and are renewable.
The duration of Chinese Alien Residence Permits is based on employment and may vary from ninety days to five years. Israeli visas similarly range from three months to five years and may be extended as long as the first extension period does not exceed two years, followed by single annual extensions. Extension beyond five years may be authorized for nursing caregivers.
Mexican Visitor Border Workers visas are limited to periods not exceeding one year. Norwegian visas are valid for periods up to two years. New permits may be granted after various periods of absence from Norway.
Similar to Norwegian visas, Russian visas can be issued for a period of up to two years; the term of the initial work authorization’s validity cannot exceed one year, which can be extended for one additional year. Workers, however, are not required to leave the country to apply for a visa extension.
Foreign worker employment periods in South Korea are generally limited to three years. In Spain, however, temporary work visas allow workers to work for up to nine months within a twelve months period and can be extended for nine months if the labor contract is extended.
C. Path to Permanent Status
A survey of the selected countries’ laws regarding the availability of programs offering guest workers a path to permanent status indicated that such a path rarely exists.
In Canada, temporary foreign workers generally cannot apply for permanent residence. Workers under the Live-in Caregivers Program, however, can apply for permanent residence as long as they meet certain requirements. Similarly, foreign workers in China, Israel, Norway, the Russian Federation, United Arab Emirates, and Tier 5 workers in the United Kingdom, are rarely, if ever, granted a path to permanent status.
South Korea offers a path to permanent residence to H-2 Korean compatriots but not to nonprofessional employment E-9 status holders. Some Australian Working Holiday visa holders may also be able to extend their stay, including through applying for a permanent visa.
Foreign trainees in Japan receive lectures and technical trainings for up to one year and can engage in on-the-job training for two additional years. They must return to their countries and cannot apply for permanent residence. Descendants of Japanese under the status of long-term residence, however, can stay in Japan for five years and may apply for permanent residence for themselves and their families.
D. Caps or Quotas Based on Market-Based Calculations
The ILO Multilateral Framework states that governments should ensure that temporary work schemes respond to established labor market needs. Many countries indeed tie the admission of workers to their prevailing market conditions.
In Australia, sponsoring employers are required to comply with certain obligations to ensure that the relevant program is being used to meet genuine skills shortages. A Labour Agreement program exists as a standard option that allows employers or industry associations to enter agreements with the federal government that specify occupations for which there is an identified or emerging labor shortage that cannot be resolved via normal sponsorship.
In Canada, similarly, admission depends on proof that the employer cannot find a Canadian citizen or permanent resident to fill a position and that the employment of a foreigner will not negatively impact the Canadian labor market.
In Israel, employment permits are issued in consideration of the needs of the labor market in specific labor sectors and geographical regions. Quotas exist for the agriculture and construction sectors but not for foreign workers in the nursing care sector.
Norway conducts a labor market assessment for determining that a position cannot be filled by domestic labor or labor from the European Economic Area (comprising the twenty-seven European Union Member States and Iceland, Liechtenstein, and Norway) or the European Free Trade Association area prior to the issuance of a permit. The Norwegian Directorate of Labour and Welfare establishes the quota for seasonal workers in agriculture and forestry. The Directorate of Immigration may establish further guidelines on the quota arrangements in consultation with the Directorate of Labour and Welfare.
Quotas for the admission of workers are determined by the federal government in the Russian Federation.
VII. Admission Status of Family Members
The ILO Multilateral Framework mentions family reunification efforts, but does not promote family reunification for temporary migrant workers as an international standard. A survey of the regulation of admission of guest workers’ family members by different countries reflects various approaches to this issue.
In Australia, no admission is bestowed on family members under the Seasonal Worker Program or under Working Holiday Visas; partners and dependent children and relatives may, however, be included in an application for a subclass 457 visa, including those sponsored as a result of a labor agreement.
Canada generally does not admit family members. Exceptions for workers with a “lower level of formal training” may apply in certain provinces and territories. In China, family members may enter with the same visa as the worker but may not work unless they adjust their status and obtain their own employment and residence permits. In Russia, family members are not covered by visas issued to temporary guest workers. Family members of skilled workers with a Norwegian residence permit may apply for a residence permit for the worker’s period of employment; it appears that the family members of seasonal workers do not have this option.
Korea allows overseas Koreans who obtain H-2 status to invite family members depending on their employment period. In Spain, family members may be issued a temporary residence visa if the applicant can prove that her or she has sufficient economic resources. The temporary residence visa under family reunification may only be issued when the foreign worker has a permit to work in Spain for at least one year, however.
In Mexico, Visitor Border Workers may request the admission of their spouses or partners and minor children. Children who have reached the age of majority but who are incapacitated are also eligible for admission.
Prepared by Ruth Levush
Senior Foreign Law Specialist and Project Coordinator
* The countries surveyed include Australia, Brazil, Canada, China, Germany, Israel, Japan, Mexico, Norway, Russia, Spain, South Korea, and the United Kingdom. These countries, along with the European Union (EU) and the International Labour Organization, were selected based on interest in their guest worker policies, the desire to cover a wide selection of both international and national approaches across continents and cultures, and the current availability of staff expertise at the Law Library of Congress.