DHS’s Bizarre Effort to Expand Legal Immigration Pathways Through Uncapped H-2A Program

Temporary visa already allows for unlimited number of qualified foreign agricultural workers

By Robert Law on February 23, 2022

Thirteen months into his term, President Biden has no solutions to stem the flood of illegal aliens coming to our southern border. My colleague Andrew Arthur recently analyzed the January encounters data, writing, “In what is quickly becoming an evergreen observation, the numbers are bad, reflecting a border in chaos with no end in sight.” While January’s 147,000 apprehensions marked a 14 percent decline from December, Arthur noted that last month’s figure reflects a more than 400 percent increase over pre-pandemic January totals. To borrow a Biden administration buzzword(s), the “root causes” of this historic border crisis are Biden administration immigration policies.

Perhaps in an effort to distract from the disaster at the border, the Biden administration has touted various policies in accordance with Executive Order (EO) 14012, “Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans”. I have frequently criticized this EO because its purported goal of “identify[ing] barriers that impede access to immigration benefits ... and make recommendations on how to remove these barriers” lacks a definition of “barriers”. In practice, every policy relying on this EO as “authority” is best understood as a blunt object to ignore laws the Biden administration disagrees with.

The Biden administration must internally be aware that immigration is torpedoing the president and his party’s poll numbers because they keep issuing policies that cater to foreign workers from the Northern Triangle. In December, Department of Homeland Security (DHS) Secretary Alejandro Mayorkas announced he was making 20,000 additional low-skilled, non-agricultural H-2B visas available, with 6,500 earmarked for aliens from the Northern Triangle and Haiti to “expand lawful pathways to the United States for workers” from those countries. Beyond the flimsy legal justification Mayorkas cites as authority to make the increase, the set-aside is clearly aimed at mitigating the visual optics of economic migrants posing as asylum seekers overrunning the southern border.

While an H-2B carve-out for aliens from the Northern Triangle theoretically has merit – it originated in the Trump administration after all – it is unlikely to release pressure at the border because seasonal employers tend to favor workers from Mexico and Jamaica. In fact, that is exactly what happened the last time DHS, under the Biden administration, previously had an H-2B allocation reserved for alien workers from the Northern Triangle. A number of them went unused but were quickly utilized once the Biden administration made them available to any foreign worker.

The latest DHS plan to “expand lawful pathways” is so preposterous it reads like an April Fool’s joke that was accidentally published ahead of time. In a February 14 email from the U.S. Citizenship and Immigration Services (USCIS) Public Engagement Division, the public is informed that “The Biden-Harris Administration is committed to expanding legal pathways to the United States as a part of a comprehensive strategy to address irregular migration [sic]. The administration is particularly focused on the expansion of labor pathways for nationals of the Northern Central American countries of El Salvador, Guatemala, and Honduras through the H-2A Temporary Agricultural Worker program.”

This is messaging puffery because the H-2A program is uncapped, meaning agricultural employers can obtain an unlimited number of foreign farmhands provided they meet the statutory requirements of the guestworker program. How does one expand an unlimited program? And the issue here isn’t processing times either. When I was at USCIS during the Trump administration, adjudicators were rendering decisions on H-2A petitions within seven to 15 days. Rather than substantively expanding legal immigration channels, it appears the purpose of this announcement is for the government to promote a specific non-profit organization called Cierto ("certain" or "sure" in Spanish), that apparently has an H-2A employer recruiter business model – the USCIS email touts the group (and only that one group) by name in the email and includes as an at attachment one of its advertising circulars.

It is unusual, to say the least, for the government to publicly pick favorites amongst non-governmental entities. It could be nothing, but perhaps a bigger story is who works for this non-profit, how does it receive its funding, and what connections, if any, tie back to specific Biden administration political appointees.