On March 31, the day before the second half of the fiscal year (FY) began, Department of Homeland Security (DHS) Secretary Alejandro Mayorkas somehow determined that seasonal businesses could not satisfy their labor desires with the 33,000 low-skilled, non-agricultural H-2B temporary worker visas available. Using authority delegated to him by Congress, Mayorkas authorized 35,000 additional H-2Bs for employers with worker start dates between April 1 and September 30, 2022. More than six weeks later, DHS finally published the Federal Register notice (FRN) that actually makes those visas available.
As I will explain below, the delay in publishing the FRN should disqualify any employer with a start date between April 1 and May 15 from availing themselves of the additional foreign workers. But will USCIS properly apply the supplemental authority in this manner?
By way of background, 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 recent years, Congress has included a provision in various funding bills that allows the DHS secretary to increase the cap rather than lawmakers going on record to officially change the annual allocation in the Immigration and Nationality Act (INA).
Mayorkas has dutifully obliged every time Congress has given him this authority. Most recently, in December 2021, Mayorkas announced that an additional 20,000 H-2B visas would be available for first-half employers, citing legal authority that was dubious at best. That move represented the first time additional visas were made available to first-half FY employers, with the total of 53,000 H-2Bs available between October 1, 2021, and March 31 representing a 60 percent increase compared to the statutory level for that period.
This brings us back to the late March announcement, which more than doubled the statutory level for the second half of the FY. As a quick aside, of the supplemental total, 11,500 H-2B visas are reserved for aliens from Haiti, Honduras, Guatemala, and El Salvador. DHS tried this carve-out in a previous H-2B increase but, as David North pointed out, that effort sputtered as seasonal employers prefer Mexicans and Jamaicans.
Back to Mayorkas’s announcement. I criticized the decision at the time, highlighting that:
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. [Emphasis added.]
More precisely, the earliest an employer can begin this process, by sending the TLC to DOL, is 90 days before the start date. By way of example, employers with April 1 start dates (the earliest second half FY start date) could send in their DOL paperwork on January 1. So while many seasonal employers could have begun this process by March 31, so-called “late season” employers with July-September start dates could not.
To reiterate, Mayorkas decided to increase the H-2B cap before some employers even had the chance to try for an H-2B and there was no indication that “early season” employers had filled the second half cap. If the cap wasn’t hit, how could Mayorkas determine that demand exceeded supply, generally, or more precisely, by 35,000?
Which brings us to the delayed publication of the FRN. A condition imposed by Congress for the supplemental H-2Bs is that the businesses seeking the additional foreign workers must attest that they “are suffering irreparable harm or will suffer impending irreparable harm” unless they get the foreign workers. The attestation is inherently flawed because it essentially forces USCIS adjudicators to take an employer’s word for it and there is no penalty for lying.
It is this condition that should disqualify any employer with a start date that preceded the publication of the FRN. While “irreparable harm” can be open to some degree of interpretation, any seasonal employer who got foreign workers for April 1 start dates and has been in continuous operation for the past six weeks cannot plausibly claim it meets that standard to get additional foreign workers. Employers who missed out on H-2B workers over the past six weeks, if any such employers exist, similarly cannot satisfy the “irreparable harm” requirement as their businesses have continued to operate. Thus, the only employers who could legitimately (and I use that term very loosely) qualify for the additional H-2B workers are those with prospective start dates from the date of the FRN’s publication. It is these employers, whose businesses have not been operating over the past six weeks, that could claim they “need” more foreign workers in order to avoid “irreparable harm”.
While I am confident in this analysis, it is doubtful USCIS adjudicators — under the direction of Biden appointees — will apply the supplemental authority this way. Instead, I am willing to bet that any employer who claims their profit margin will decrease in the coming months will satisfy the “irreparable harm” requirement — effectively making it as toothless as the attestation.
Which brings me back to my April criticism of the H-2B supplemental announcement. The H-2B program has long moved away from its intended role of filling true labor shortages and instead functions as a low-cost alternative employment method for seasonal employers. Or as I wrote in the April piece:
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.