http://legalinsurrection.com/2015/12/should-we-be-concerned-about-raising-the-h-2b-visa-cap/Among the various random provisions in the 2,000+ page omnibus spending bill rattling around Congress is the amending the condition of the H-2B visa annual cap.
The bill itself is indefensible. Cobbling together a 2,000 page tax-payer funded Christmas wish list, expediting it through both chambers and on to the Oval Office within 72 hours is hardly good government. It’s particularly problematic when the bill is spiked with substantial immigration reforms.
That being said, is amending the H-2B visa allocation a bad thing?
The H-2B visa (along with its H-2A counterpart) is the guest worker program everyone on the immigration reform bandwagon loves to talk about but pretends does not exist.
H-2Bs are for seasonal, one-time employment only. They’re not used, nor will they be approved if the job is ongoing under normal circumstances and typically cover the oft cited, “jobs Americans don’t want.” H-2Bs are job specific, employer specific, and rarely (in my experience) see dependents tagging along. Employers are required to pay all costs for getting people here and sending them home. Like most other visa types where work is permitted, petitions must first be approved by the Department of Labor (DOL) before being sent to United States Citizenship and Immigration Services (USCIS) for processing.
They also bear low risk of overstay (again, in my experience), because workers come to the U.S., do their manual labor jobs, pocket the cash, and take their wad of Benjamins back home. Before you get up in arms about taxes, for repeat workers the whole “substantial presence” test kicks in and eventually, they are taxed on their income.
In my past immigration law life, I processed a fair number of H-2B petitions. My hatred of H-2Bs can be reduced to three factors:
1) They’re more complicated than other visa petitions and not in fun ways. H-2Bs are a hybrid of old school labor certification petitions (a step in the employment-based green card process) and regular ol’ visa petitions (if such a thing exists).
2) Trying to get documentation needed from temporary foreign field laborers is a nightmare. Particularly when up-to-date identification and other requisite information is not necessary for the course of business in the country from which the H-2B applicants are traveling.
3) Denial rate was high compared to other visa types. Why? See #2.
H-2Bs are costly to employers who are required to pay all costs associated with the petition, legal fees, not to mention the hassle of dealing with a minimum of four government agencies. It’s would much cheaper to employ domestic help. Which brings us back to the “jobs Americans don’t want” issue.
Sen. Sessions said the bid would quadruple the cap number. But that’s not entirely accurate, it’s also not technically wrong.
The section he’s referring to in the omnibus bill would not count previous H-2B holders against the cap for the coming fiscal year, opening up room for other new applicants:
“SEC. 565. Section 214(g)(9)(A) of the Immigration and Nationality Act (8 U.S.C. 1184(g)(9)(A)) is amended by striking ‘‘2004, 2005, or 2006 shall not again be counted toward such limitation during fiscal year 2007.’’ and inserting ‘‘2013, 2014, or 2015 shall not again be counted toward such limitation during fiscal year 2016.’’
Sessions went on to say, “our immigration system must serve the national interest. Flooding this loose labor market with additional low-skill labor hurts the wages and reduces the job prospects of those who are recent immigrants and native-born who are struggling the most.”
Also not accurate. The H-1B, H-2B, and H-2A alike are all job and employer specific for a reason — to prohibit foreign nationals from using the H visa to get to the U.S. only to hop from job to job. Changes in employment, even a promotion or demotion, must be approved by the DOL and USCIS.
And the national interest? What if that national interest involves tracking and taxing low-skill labor as opposed to ceding those jobs to illegal immigrants?
Randel K. Johnson of the Chamber of Commerce elaborates:
“It is clear as a matter of logic that legal temporary worker programs for lesser-skilled workers would enhance U.S. security and border control,” Johnson says in his prepared remarks
Johnson continues: “To be blunt, and less academic, job availability in this country will always be a magnet for those in less well-off countries that are looking to better themselves and their families. Unfortunately, that magnet has led to illegal immigration, despite significant efforts at improved border control. The U.S. can help eliminate the incentive for illegal immigration if temporary worker programs can be used to fill available jobs – assuming that efforts have already been made to fill those jobs through the recruitment of U.S. workers.”
Though the current cap of 66,000 H-2B visas is seldom reached, providing wiggle room within the cap should (in theory anyway) entice legal labor. I would be wholly on board with raising the H-2B cap if an enforcement component were attached, though I’m not a fan of how this reform is being pushed.
Sadly, much needed enforcement measures like a border fence, aerial surveillance, more boots on the ground, and updated exit tracking technology were part of the funding brawl last year that was ultimately torpedoed by the House Freedom Caucus.
Finally, while the H-2B is getting a bad rap and like other visa types, is largely misrepresented in the worst of ways, I object to the fact that a reform like this was lumped in with all kinds of other garbage. The public deserves the opportunity to weigh in on immigration reform efforts, especially when that reform includes making more immigration opportunities available.
Follow Kemberlee on Twitter @kemberleekaye
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Update: This post has been amended to reflect the fact that the omnibus bill does not call for raising the cap, but for exempting previous H-2B holders from counting against cap numbers. To say the cap would quadruple assumes all previous H-2B holders would apply for renewal next fiscal year.
