The Curious Case of DHS’s Authority to Increase H-2Bs

A trip down the legislative rabbit hole to find the answer

By Robert Law on December 29, 2021

Throughout its first year, the Biden administration has unilaterally applied the immigration system it prefers, irrespective of what U.S. immigration law says. A few examples include aggressively granting Temporary Protected Status (TPS) without properly applying the law to give hundreds of thousands of illegal aliens work permits; unlawfully using categorical parole to allow tens of thousands of un-vetted and visa-less Afghans into the country; and nullifying the notice and comment requirements for rescinding or revising regulations under the Administrative Procedure Act (APA) by way of refusing to defend previous administration policies in court. Not to mention the historic border crisis by the Biden administration’s refusal to enforce the law.

By contrast, sometimes Congress abandons its lawmaking responsibilities and delegates authority to the Executive Branch. In the immigration context, this has manifested in legislation allowing the Department of Homeland Security (DHS) secretary to unilaterally increase the number of H-2B low-skilled (non-farm) temporary foreign worker visas beyond the 66,000 per fiscal year (FY) cap. This gives Congress the benefit of increasing the number of foreign workers for its donor base without having to go on the record as voting in favor of a specific number of additional foreign workers.

 On December 20, Secretary Alejandro Mayorkas announced that DHS will increase the H-2B low-skilled temporary foreign worker cap by 20,000 for the first half of fiscal year (FY) 2022, with 6,500 set aside for foreign workers from Haiti and from the "North Triangle" countries of El Salvador, Guatemala, and Honduras. Employers typically seek out Mexicans and Jamaicans for H-2Bs but the carve out is clearly aimed at the populations causing the Biden administration the worst optics at the southern border.

In a December 21 piece, David North pointed out that the Biden administration did something similar earlier this year under FY 2021 H-2B supplemental authority (6,000 H-2Bs limited to the Northern Triangle) but it “did not have the intestinal fortitude to stick with its initial position.” With few employers seeking alien workers from the Northern Triangle, in July DHS announced that it was opening up the remaining “unused” slots for any alien worker, regardless of nationality. Employers quickly filled those up, presumably with Mexicans and Jamaicans.

The December 20 announcement caught me by surprise because there was nothing in the early December continuing resolution (CR) to temporarily fund the government through February 18, 2022, that I observed dealing with H-2Bs. That CR did have immigration provisions, including an obvious $7 billion allocation for the visa-less Afghans in the country and an obscured $1.6 billion appropriation for unaccompanied alien children (UACs).

I chalked up being blindsided to an oversight on my part in reading the language in the December CR. But finding the answer entailed going down a legislative rabbit hole, as it required reviewing multiple pieces of legislation and allowing my mind to process a novel legal interpretation to discover how Mayorkas was justifying this delegated authority.

My first stop was the December CR itself. After checking every cross-reference (the legislative trick to hide the specific nature of certain provisions), I still did not see the authorizing language in that bill. Next, I turned to the DHS press release announcing the 20,000 supplemental H-2Bs, but it was silent on the underlying authority. Instead, DHS bragged that this is the first time the supplemental authority has been used to benefit employers seeking foreign workers in the first half of the fiscal year. Under the INA, Congress has set a 66,000 cap of H-2Bs per fiscal year, with 33,000 reserved for the first half of the fiscal year, running October 1 through March 31, and any unused slots from the first half plus 33,000 more available for the second half of the fiscal year, running April 1 through September 30. All prior H-2B supplemental authority delegations had occurred in the second half of the fiscal year, primarily benefiting landscapers.

With the help of others, I ended up at Public Law 117-43, the CR that initiated temporary government funding to start FY 2022. Despite that law only funding the government through December 3, it turns out it included language to fully authorize certain provisions from the FY 2021 Omnibus, regardless of a potential lapse in government funding (which has yet to occur). This novel operative language is found in Section 101 and reads:

SEC. 101. Such amounts as may be necessary, at a rate for operations as provided in the applicable appropriations Acts for fiscal year 2021 and under the authority and conditions provided in such Acts, for continuing projects or activities (including the costs of direct loans and loan guarantees) that are not otherwise specifically provided for in this Act, that were conducted in fiscal year 2021, and for which appropriations, funds, or other authority were made available in the following appropriations Acts:

One of the enumerated provisions getting this special treatment is section 105 of Division O of the FY 2021 Omnibus government funding bill, signed by then-President Trump on December 27, 2020. Section 105 was an H-2B supplemental authority delegation, identical to the ones Congress included in Omnibus bills going back to FY 2017.

Curiously, there was no talk by the Biden administration early in FY 2022 that it possessed H-2B supplemental authority. Did everyone at DHS miss the authorization earlier, or has someone in recent weeks dreamed up the novel interpretation of Section 101’s language to revive H-2B supplemental authority? If Secretary Mayorkas had this authority, why weren’t all of the business groups urging him to immediately exercise it in October, when the current fiscal year began?

Something else appears awry when you look at the December press release. If the FY 2022 authority is valid, it would have to be identical to the FY 2021 authority based off of the wording of Section 101. Beginning in FY 2017, Congress gave the DHS secretary, in consultation with the Department of Labor secretary, the ability to increase the H-2B cap but businesses had to “attest they will likely suffer irreparable harm without the ability to employ all the H-2B workers requested”. The Mayorkas press release makes no reference to businesses having to make this attestation.

Was this just a sloppy oversight in the drafting of the press release, or are we truly in the Wild West of legislative interpretation and anything goes? A forthcoming temporary final rule may provide clarity, or this might be the latest example of the Biden administration operating under the immigration rules it prefers instead of the ones that actually exist.

Correction: An earlier version of this post mistakenly identified the FY 2021 omnibus funding bill as the source of acting DHS Secretary Wolf's March 2020 expansion of H-2B visas.