Can There Be a Migration Ceiling with Loopholes as Large as the Ceiling?

By David North on April 29, 2015

The answer to the question posed by the headline is "Yes".

The H-2B program is the smallest of the three in which the U.S. Department of Labor has a role; it is for nonimmigrant, non-agricultural, non-skilled workers. It has a nominal cap of 66,000 new admissions a year, half in the first part of the fiscal year, half in the second. The Department of Homeland Security, not DoL, handles the ceilings. Most of the H-2Bs are in landscaping or forestry work.

For years there have been several loopholes in these ceilings, as I will outline below, but on April 2 of this year DoL announced what appears to be a new category of exceptions: "H-2B workers in the United States or abroad who have previously been counted toward the cap in the previous three years." (Which I'll call Population A.)

To understand the significance and size of the loophole it is necessary to understand that this is a revolving program; many H-2B workers opt to return for a second or third season with the employer to earn some cash to supplement whatever income they have during the rest of the year at home. Let's say that, on average, two workers out of three are returnees and one is a new worker. That would mean about 22,000 new workers a year and, of course 22,000 dropouts from the prior year.

In addition, the same DHS/USCIS press release said that the following workers would also be exempt:

  • "Current H-2B workers seeking an extension of stay" (Population 1);

  • "Current H-2B workers seeking a change in employer or terms of employment" (Population 2);

  • "Fish roe processors, fish roe technicians, and/or supervisors of fish roe processing" (Population 3); and

  • "H-2B workers performing labor or services from November 28, 2009, until December 31, 2019, in the Commonwealth of the Northern Marianas and/or Guam" (Population 4).

The last (poorly drafted) sentence about these islands (which are already flooded with other kinds of temporary workers) might suggest that H-2B workers, who work in the islands in the future can claim H-2B status there, or on the mainland, right now. Do the high-tech innovations of the government include a time machine?

Back to the holes in the ceiling: Population 1 above consists, potentially, of 66,000 workers, as the ceiling for new issuances was oversubscribed this year. Population 2 is a subset of Population 1. Populations 3 and 4 are probably both small and largely overlap Population 1. Populations 1 through 4 thus equal a little more than 66,000.

Meanwhile our previous calculations suggest that Population A would also equal about 66,000 (22,000 * 3 = 66,000). Since these workers, by definition, are program drop-outs not counted within Population 1, the total of those eligible for non-ceiling admissions in this program would seem to be 132,000. (The departments of Labor and Homeland Security, using a somewhat similar estimation methodology, come up with the number 115,500, as can be seen on p. 196 of the new interim rules for this program.)

Both my estimate (132,000) and the government's (115,500) are much larger than the 66,000 ceiling that is always cited in DoL's press releases.

That's the long story about how the loopholes, when added to the cap, can make the total number of admissions be much larger than the ceiling itself. And that's just another sneaky way that the Obama administration is expanding temporary worker programs — and other admissions systems — often without saying clearly that they are doing so.

Fact Checking. I first read about the exemption for Population A in the April 6 issue of Interpreter Releases, the always reliable trade paper for immigration lawyers. It carried the reference to three years.

Then I read the full text of the latest DHS/USCIS release on the H-2B limits and exemptions and its description of what I term Population A was as follows:

H-2B workers in the United States or abroad who have been previously counted towards the cap in the same fiscal year.

Same as what? What fiscal year or years? Again, a muddy sentence. And why did Interpreter Releases not use the same terminology?

I called Beverly Jacklin, one of the publication's editors, and asked her about the puzzle. She said that they had used exactly the terminology in a USCIS communication she had received on April 2, and then she e-mailed me the text of what USCIS had sent her. It carried a mention of the three years. So USCIS has used two different definitions, one more murky than the other, about those who are exempt from the annual 66,000 ceiling.

Efforts to get the USCIS press office to clarify the matter were in vain, as several phone calls to it were not returned.