A fifth of construction workers do not have permanent legal staff. Can the next president change that?

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Construction has an open secret about the number of workers without permanent legal status on the job sites.

Immigrants entering the country illegally make up about 23 percent of the U.S. construction worker workforce, according to a 2021 report from the Center for American Progress. A Pew Research Center study set this quota at 15% for all workers in construction jobs.

Those numbers underscore a strain in the construction industry, where an industry starved for help sometimes rolls out the welcome mat to workers who don’t have status to work in the country legally. Doing so can give contractors who are willing to look the other way an edge over the competition, but it also opens the door to abuse by employers.

“No one benefits from having large numbers of undocumented workers in the construction industry,” said Brian Turmail, vice president of public affairs and labor for the Associated General Contractors of America. “It becomes all too easy for these workers to be exploited by unscrupulous contractors who then fail to provide responsible contractors.”

As the 2024 presidential election nears, the issue has become even more important to construction executives looking for a way to legally expand their labor.

The construction sector will have to enter almost 454,000 new workers in 2025 in addition to normal hiring trends to meet industry demand, according to Associated Builders and Contractors. This estimate also assumes construction spending growth slows significantly next year, although other data indicate that non-residential construction planning should accelerate to mid-2025.

For this reason, construction trade organizations continue to advocate for significant reform of the current immigration system. That means pushing for more programs that allow workers to enter the country legally and work in construction, said Anirban Basu, ABC’s chief economist.

“If we can find a way to deal with these 11 [million] or 12 million undocumented migrants: is there a path to, if not citizenship, at least a work visa? Can we bring them out of the shadows?” Basu said. “Can they be hired by a contractor without fear of penalties, either for the employee or the employer?”

H-2B visa reform

One of those reforms is to increase the current cap of 66,000 visas issued annually under the H-2B visa program, said Kristen Swearingen, ABC’s vice president of legislative and policy affairs.

The H-2B visa program provides temporary foreign workers to industries such as construction, helping to address labor shortages.

“Common sense solutions to address the 12 million undocumented immigrants in the United States include expanding the H-2B visa and reforms to the overall program,” Swearingen said. “Currently, the H-2B cap is too low to significantly improve the massive shortage of workers in construction and other industries, and that cap should be based on economic need.”

As for the presidential election, both candidates have pledged to reduce illegal border crossings. But when it comes to making it easier for foreign-born nationals to immigrate legally to work, each has taken a different stance.

Vice President Kamala Harris, if elected, is likely to continue the Biden administration’s approach to expanding legal immigration pathways like the H-2B visa program, said LJ D’Arrigo, partner and leader of immigration practice at Harris Beach in Rochester. Law firm based in New York.

During Harris’ time as vice president, the Department of Homeland Security announced a record allocation of 20,000 H-2B temporary non-agricultural worker visas for citizens of El Salvador, Guatemala, Honduras, and Haiti, as part of nearly 65,000 additional H-2B visas available for fiscal year 2023.

“I think it’s clearer to project what would happen under a Harris administration. I would expect there to be at least a status quo in terms of allocation and availability of H-2B visas,” D’Arrigo said. “While Trump personally uses the H-2B visa program for his businesses, it is unclear how he will approach the H-2B visa program based on his record of restricting legal immigration.”

During his administration, President Donald Trump nearly doubled the number of H-2B visas available in 2019. However, in June 2020, his administration suspended the program, saying it was to protect US workers from labor competition due to the economic recession caused by the covid-19 Pandemic.

“Little has been reported about what Trump’s policy on ‘legal immigration’ is likely to be in a second Trump term,” D’Arrigo said. “We have the advantage of envisioning what Trump immigration might look like in 2025 through the lens of the previous Trump administration. Under his administration, we saw a record number of visa denials, which left businesses Americans without the talent they need to succeed in a globally competitive economy.”

DACA and TPS

In addition to the significant expansion of the H-2B visa program, AGC has called on Congress to enact legislation authorizing both the Deferred Action for Childhood Arrivals and the Temporary Protected States Programs.

DACA grants deportation relief and work permits to young immigrants brought to the United States as children, often called “Dreamers.” Trump tried to end the DACA program in 2020, but Congress blocked the move. If re-elected, Trump will likely try to end DACA again, D’Arrigo said.

TPS provides temporary legal status to immigrants from countries in crisis. Trump would also try to roll back TPS designations.

On the other hand, D’Arrigo expects a Harris administration to make DACA a high priority, as it has been for Biden’s immigration policy.

But just increasing the number of workers in the US is not enough to solve the construction problem, Basu said.

Opponents of immigration reform say bringing in more workers would lower wages, according to the Center for Immigration Studies. However, for Basu, the key challenge remains finding workers with the specialized skills.

“I don’t talk about the labor shortage so much because I don’t think it’s really a labor shortage,” Basu said. “It’s a skills shortage, a shortage of skilled workers.”

Many of the people crossing the border lack the refined skills needed for the types of equipment, technologies and processes used in the U.S. construction industry, Basu said. Thus, while the influx of workers may help fill gaps in the short term, it does not address the core issue of skilled training.

Training solutions

AGC is working with U.S. Reps. Morgan Luttrell, R-Texas, and Tom Suozzi, D-N.Y., to craft bipartisan legislation to address a range of immigration and work authorization programs.

AGC suggests doubling funding for the Perkins Act, a federal funding program that supports career and technical education, and increasing postsecondary federal funding for construction education and training programs. Federal officials currently invest about 80 percent of postsecondary funding in four-year degree programs, even though only 38 percent of Americans will earn that degree, Turmail said.

Basu also emphasized the need to retain skilled foreign talent. He questions the logic of returning talented people trained in American universities to their countries of origin, arguing that if they are “gifted in science, technology, engineering or mathematics, we need them here.”

“There are loads of kids coming from India, China and elsewhere to our world-class colleges and universities [in the United States.] They get their STEM degree, and then what do we do? We send them back to Seoul, Beijing, Delhi, Baku or wherever,” Basu said. “This is nonsense. I’ve said many times, let’s build a wall to keep these people out.”

Improvements in training and comprehensive immigration reform remain equally critical to solving the workforce problem, according to AGC. Turmail highlights the need for both better border security and a legal pathway for immigrants already in the industry.

“There’s no doubt that we need better border security, and we also need a path to deserved legal status for undocumented workers who are already in the country,” Turmail said. “We remain focused on revitalizing the domestic pipeline for new workers and ensuring that there are sufficient and legal ways for people to come into the country and work in construction so that our industry can keep pace with the demand for new infrastructure and development projects economic”.