Less than two weeks after the Departments of Homeland Security (DHS) and Labor (DOL) officially made 20,000 additional H-2B low-skilled work visas available for the first half of the fiscal year (FY), a bipartisan group of senators is already calling for further increases. In a letter to DHS Secretary Alejandro Mayorkas and DOL Secretary Martin Walsh, the 34 senators — 17 Republicans and 17 Democrats — are calling for the maximum possible increase of H-2Bs, which would nearly double the statutory cap.
Under the Immigration and Nationality Act, Congress allows for 66,000 non-agricultural, seasonal foreign workers per fiscal year, with 33,000 available for the first half (October 1 to March 31) and 33,000 plus any unused first-half slots available for the second half (April 1-September 30). However, since FY 2017 Congress has delegated authority to the DHS secretary, in consultation with the DOL secretary, to exceed the H-2B cap, up to 64,716 additional visas. The maximum number reflects the highest number of “returning workers” (those who held H-2B within any of the previous three fiscal years) who entered the country in a fiscal year where Congress exempted such foreign workers from the cap.
Unfortunately, during the Trump administration each DHS secretary claimed to not want this authority but acted on it anyway, resulting in H-2B increases of 15,000 (FY 2017); 15,000 (FY 2018); 30,000 (FY 2019); and 35,000 (FY 2020, though scrapped before implementation because of Covid-19). The Biden administration continued the trend in FY 2021, increasing the H-2B cap by 22,000 as some Covid travel restrictions were lifted.
In each of these examples, the supplemental authority delegated by Congress was contained in omnibus spending bills that funded the government for the remainder of these respective fiscal years. Also, in each instance, the additional foreign workers were made available to employers who requested start dates no earlier than April 1, the first day of the second half of the fiscal year. By comparison, the recent 20,000 H-2B increase was made available to first-half employers, meaning those with a start date no later than March 31. And, unlike the previous examples, this supplemental authority was contained in a short-term funding bill, known as a continuing resolution. I have separately written about how this structure’s legal justification is flimsy, at best, given the temporary nature of the funding bill and the potential for a government shutdown.
There are a couple of remarkable aspects to the senators’ letter. First, the senators are calling for an additional 44,716 H-2Bs to be made available despite the 20,000 supplemental cap not yet being filled. The remaining availability of H-2B visas directly undermines the senators’ claim that there persist “seasonal labor shortages caused by the inadequate H-2B visa cap”. Similarly, the statement that “Without meaningful H-2B cap relief, many seasonal businesses will be forced to scale back operations, cancel or default on contracts, lay off full-time U.S. workers and, in some cases, close operations completely,” is completely without merit. If these alarmist claims sound familiar, it is because the Wall Street Journal editorial board parroted the same myth that there are “jobs Americans won’t do”.
Additionally, the senators’ plea for the executive branch to act again is an abdication of their responsibilities as legislators. By calling for the maximum possible increase, it appears that this bipartisan group of senators has determined that the “right” H-2B cap is roughly 131,000 foreign workers per fiscal year. Although the two-page letter lacks any analysis as to how the senators’ reached this conclusion, it would only take a very simple piece of legislation to amend the INA to raise the cap from 66,000 to 131,000. With 17 Republicans signing onto the letter, there appears to be sufficient support to overcome the Senate filibuster and get this legislation to President Biden’s desk. If lawmakers are willing to put their names on letters, they should be willing to draft (or cosponsor) legislation that takes ownership of the policy change they’re advocating.