Decision on Seasonal Worker Visa Numbers Back in DHS’s Court (1)

March 22, 2018, 1:22 PMUpdated: March 22, 2018, 7:56 PM

Congress again is poised to kick back the decision of whether to increase seasonal foreign worker visas to the Homeland Security Department.

The omnibus spending measure unveiled late March 21 says the DHS secretary, in consultation with the Labor Department, may determine whether to increase H-2B guestworker visas this year. The language mirrors a provision enacted in 2017.

Employers already have sought more of the temporary visas than are available for the second half of the fiscal year, which begins April 1. U.S. Citizenship and Immigration Services held the first-ever H-2B lottery March 1 after receiving petitions for 47,000 H-2B visas on the first day employers could apply. Only 33,000 visas are available for the period running from April 1 to Sept. 30.

H-2B visas are popular in industries such as landscaping, amusement, resorts, and construction.

Positions Empty Otherwise

Employers “are grateful” that the spending bill “includes a path forward to help save the spring and summer for many seasonal businesses, their full-time domestic workforce and the communities they serve,” the H-2B Workforce Coalition said in a statement provided to Bloomberg Law March 22.

“Without immediate action, more than 67 percent of seasonal positions will go unfulfilled, forcing businesses to turn away customers, lay off American workers whose jobs are supported by H-2B workers, and in some cases shut down their operations entirely,” the coalition said.

Still, the coalition—a group of more than 40 industry associations that advocate in favor of the H-2B program—said it wants a “permanent solution” to what it sees as a lack of adequate visa numbers.

It’s “interesting that this seems to be the top priority of many members of Congress rather than shoring up immigration enforcement or border security,” or even legal status for participants in the Deferred Action for Childhood Arrivals program, Jessica Vaughan, director of policy studies for the Center for Immigration Studies, told Bloomberg Law March 22.

“The only thing that they could agree on was a very controversial guestworker program that most Americans certainly don’t support,” she said.

15,000 Extra Visas Last Year

In July 2017, the DHS issued an additional 15,000 H-2B visas to businesses that could demonstrate they would experience extreme hardship without them. But the delay in issuing the extra visas caused some consternation, to the point that Sen. Thom Tillis (R-N.C.) put a hold on Francis Cissna’s nomination for USCIS director until the DHS acted.

Employers eventually used 13,534 of the 15,000 additional visas.

It’s “noteworthy” that “the available visas were not all used,” said Vaughan, whose organization supports lower immigration levels. “We could be looking at a repeat of that scenario,” she said. However, if Congress passes the measure this week, that will be earlier in the year, leaving more time for employers to use any extra visas that are allotted, she said.

Still, there are millions of lesser-educated U.S. workers who have dropped out of the labor force “who would be good candidates for this kind of work,” Vaughan said. “To me, this really calls into question whether we need the program at all,” she said.

Create U.S. Jobs

But H-2B workers help businesses operate at greater capacity during certain times of the year, supporting jobs for U.S. workers, the H-2B Workforce Coalition says. “Every H-2B worker is estimated to create and sustain 4.64 American jobs,” the coalition said in its statement.

The coalition estimates that 65,578 requested H-2B positions will go unfilled as a result of the 33,000 cap for the spring and summer season. The figure is based on labor certification requests filed with the DOL—a step all employers must take before seeking visa approval from USCIS.

Because employers aren’t allowed to file a labor certification application more than 90 days before the workers are needed, there are thousands more applications still pending at the DOL, even though the H-2B cap has already been reached, the coalition said.

Vaughan thinks the DHS will feel the pressure again to issue additional H-2B visas despite the administration’s focus on protecting jobs for U.S. workers. But any negotiation as to how that’s implemented should involve discussions about management of the visa program, rather than trading numbers of H-2B workers for sections of the border wall, she said.

A representative for the DHS didn’t respond to Bloomberg Law’s request for comment.

(Updated to include additional reporting.)

To contact the reporter on this story: Laura D. Francis in Washington at lfrancis@bloomberglaw.com

To contact the editor responsible for this story: Terence Hyland at thyland@bloomberglaw.com

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