One of the management tools potentially available to the government in the immigration field is the size of the fees that it charges for adjudicating employer petitions.
At the very least, the size of the fees should meet the standards of the law (31 USC 9701), which I discuss below, and should not encourage the overuse of foreign workers to the detriment of resident workers. The past administration did not accept the second concept at all, but perhaps the new one will.
The government has a lot of latitude in how it sets fees for things like migration petitions, a latitude that can be used as a policy tool. The relevant section of the law dealing with the matter states:
(a) It is the sense of Congress that each service or thing of value provided by an agency ... is to be self-sustaining to the extent possible.
(b) The head of each agency ... may prescribe regulations establishing the charge for a service or thing of value provided by the agency. Regulations prescribed by the heads of executive agencies are subject to policies prescribed by the President and shall be as uniform as practicable. Each charge shall be-
(1) fair; and
(2) based on-
(A) the costs to the Government;
(B) the value of the service or thing to the recipient;
(C) public policy or interest served; and
(D) other relevant facts.
In the recent past, in the immigration field generally, the only standard that seems to have been observed is the first one, the costs to the government, except in some of the rules regarding the H-1B program, where substantial fees were laid down with, apparently, at least some recognition of the huge value to the employer of that visa.
It is time to make sure that no foreign worker fees are set below the costs of the adjudication, as that simply encourages users to hire foreign workers and to shoulder aside resident ones. Clearly the admission of foreign workers is a valuable service to the employers and, as far as I am concerned, flies in the face of "public policy ... served." Thus, fees for foreign workers should be large enough to make the employers aware that these are costs they need not bear, were they to simply hire American workers.
I was reminded of all of this when the Department of Homeland Security's Office of the Inspector General issued a highly valuable report last week on the fees charged by DHS in the H-2A and H-2B programs for unskilled agricultural and non-agricultural workers.
The fee structure, although OIG does not use the term, is a scandal.
Do you want one of these workers? You do little damage to the U.S. labor market and you are charged $460.
Do you want 100 of these workers? Thus denying one hundred Americans jobs — well then, you are charged the same $460. (That fee was even lower, $325, at the time OIG did the study.)
This is absurd on the face of it: The work of checking out 100 named workers is clearly 100 times more time-consuming than checking one of them. Further, the employer gets the benefit of having 100 workers who are, routinely, paid less than domestic workers, and who are subject to the special indentures of foreign workers, as opposed to citizen workers who are not in danger of deportation if they displease their bosses.
Further, if the employer pays a fee of, say, $460, for every worker to be hired through this program, maybe he will not inflate his alleged needs and that will reduce the size of his alien work force by some percentage, maybe even opening some jobs for residents. The OIG does not quite recommend the one-worker/one-fee approach, but its advice pushes in that direction.
The OIG is to be commended, by the way, for publishing the photograph above, of a pile of petitions for 600 workers alongside a single petition; it is the kind of dramatic contrast that helps make the point.