H-2B Visa Discretion

By Benjamin Dierker on June 12, 2017

Secretary of Homeland Security John Kelly made it clear at last week's House Homeland Security Committee hearing that he wants to focus on national security and not economics or labor. At several points during the hearing, the H-2B Visa was raised as an area of concern. The visas provide for temporary permitting of foreign workers for nonagricultural labor, typically for seasonal business, high workload periods, or for a one-time project.

In the funding bill passed last month for the remainder of this fiscal year, the Secretary of Homeland Security was authorized – but not mandated – to issue up to 70,000 extra H-2B visas, beyond the statutory limit of 66,000, to "returning workers" who had previously held such visas. Kelly stated that his sense was that Congress did not want visas expanded, because if it did, it would have simply required the issuance of the extra visas, rather than leave it to him to decide in consultation with the Department of Labor.

Previously in his testimony, Kelly stated that he was aware that many people are "taking advantage of our generous immigration and visa system." While those remarks were in the context of bad actors, the concept is true across the spectrum with fraud, overstays, and abuse of cheap labor. He also acknowledged that he was new to the issue of the H-2B visa and does not know exactly how to administer the program for the best effect.

Rep. Bill Keating (D-Mass.) made an impassioned plea for increased H-2B issuances and the removal of returning worker caps. Responding to this, Kelly noted that he is not clear on the actual economics at play. "I have a very large number of members of Congress saying don't expand it because it means American jobs, the unions, and all the rest of it," Kelly stated when explaining his desire not to have to deal with it.

The secretary has the authority to issue additional H-2B visas, but no mandate to do so, nor any encouragement. It is a welcome change to see a government official not pushing the boundaries of his authority.

Rep. Keating went on to say that, "There’s no security interest. These are returning workers; some of them have been coming back and forth for 20 years." But this does more to bolster Kelly's position than anything. If there is no security interest, why does the Department of Homeland Security have discretion over the visas? And if the visas are so important, why did Congress not simply increase the cap? Ultimately, one gets the impression that Kelly does not believe the H-2B visa is something the DHS secretary ought to be fretting over, and that the issue belongs with Labor.