Department of Homeland Security Secretary Alejandro Mayorkas has yet again thrown seasonal businesses a government subsidy in the form of additional cheap foreign workers. As first reported by Michelle Hackman of the Wall Street Journal, Mayorkas will use authority delegated to him by Congress to make 35,000 additional H-2B visas available for low-skilled, non-agricultural workers.
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 to September 30). In December 2021, Mayorkas announced an additional 20,000 H-2B visas would be available for first-half employers, citing legal authority that was dubious at best. That move made a total of 53,000 H-2Bs available between October 1, 2021, and March 31, or a 60 percent increase compared to the statutory level.
Now, before the second half of the fiscal year has even begun, Mayorkas is giving employers the opportunity to hire 68,000 total H-2Bs, more than double the statutory allotment of 33,000. Of the 35,000 extra workers made available, 11,500 are reserved for aliens from Haiti, Honduras, Guatemala, and El Salvador. The administration has made this carve-out before, but when they go unutilized (because employers tend to hire Mexicans and Jamaicans for H-2B labor) they eventually drop the nation-based limitation, ensuring the maximum number are issued.
The timing of this announcement is significant because many second-half employers are not even eligible yet to petition for H-2B workers and there is no indication that the second-half cap was already met. The H-2B program nominally has a labor market test, known as the Temporary Labor Certification (TLC), run by the Department of Labor. This process is free for employers to file and loophole-ridden to such a degree that DOL essentially rubber-stamps every TLC that comes across its desk. Those employers who haven’t even begun the TLC process are now armed with the knowledge that more cheap foreign workers are available, reducing any incentive to look for American workers.
This preemptive move by Mayorkas lets seasonal employers off the hook from recruiting Americans by offering better wages and working conditions. Instead, the federal government will subsidize bad business models or simply further enrich employers by giving them access to more cheap foreign workers than otherwise would be allowed. As David North pointed out last year, the H-2B employer data hub published by USCIS shows the “bargain rates” (read: sub-market or cheap) that the government allows employers to pay H-2B workers.
The H-2B supplemental authority Secretary Mayorkas has exercised twice this fiscal year builds off of last April’s move to add 22,000 H-2Bs for the second half of fiscal year 2021. In less than 13 months, Secretary Mayorkas has authorized 77,000 H-2Bs beyond the annual cap of 66,000.
Using history as a guide, the Wall Street Journal editorial board will likely pen a laudatory piece praising the increase while members of Congress will un-ironically push for Mayorkas to go even further with the supplemental authority instead of introducing legislation that raises the H-2B cap to the “right” number.