DHS Won’t Say Why It’s Trashing H‑2B Visas during aLabor Shortage

pa href=https://www.cato.org/people/david-j-bier hreflang=undDavid J. Bier/a
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pThe Department of Homeland Security (DHS) will finalize a href=https://public-inspection.federalregister.gov/2022-10631.pdfa rule/a this week that increases the H‑2B summer visa cap by 35,000. The rule comes 12 weeks after employers filled the cap and 7 weeks after H‑2B workers were supposed to arrive. Although the decision to increase the cap by a record amount is very positive, and the increase follows a href=https://www.cato.org/blog/case-increasing-h-2b-guest-worker-visas-strongour recommendation/a and a href=https://www.cato.org/blog/case-increasing-h-2b-guest-worker-visas-strongcites/a much the same evidence for the increase, DHS is simply choosing not to release nearly half of the 66,792 visas Congress authorized, and its delay in issuing the rule means that nearly half the season will be wasted before emany/em workers arrive./p
pAlthough DHS has repeatedly wasted H‑2B visas authorized by Congress, the country is now facing the most extreme labor shortage in living memory. It is impossible to imagine another year having a stronger case for using all the H‑2B visas. As I’ve explained a href=https://www.cato.org/blog/case-increasing-h-2b-guest-worker-visas-stronghere/a, demand for H‑2B visas, job openings in the most common H‑2B industry, the unemployment rate in the most common H‑2B occupation, wages in that occupation, and the certification rate for H‑2B jobs are all setting records./p
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/ppYet DHS not only provides no explanation at all for its decisions 1) to delay issuing the rule or 2) to waste the visas—it barely acknowledges that it did delay or will waste visas. The law grants DHS the authority to raise the H‑2B cap by the highest number of returning workers exempted from the cap by Congress in prior years. In a footnote, DHS explains that there are two apparently equally valid approaches to decide how many returning workers were exempted:/p
blockquotepemThe highest number of returning workers … was 64,716, which represents the number of beneficiaries covered by H‑2B returning worker petitions that were approved for FY 2007. DHS also considered using an alternative approach, under which DHS measured the number of H‑2B returning workers admitted at the ports of entry (66,792 for FY 2007)/em/p
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pBut then—without explaining what number it is deciding to use—DHS simply asserts that:/p
blockquotepemThe highest number of H‑2B returning workers approved was 64,716 in FY 2007. In setting the number of additional H‑2B visas to be made available during the second half of FY 2022, DHS considered this number, overall indications of increased need, and the availability of U.S. workers, as discussed below. On the basis of these considerations, DHS determined that it would be appropriate to make available up to 35,000 additional visas. /em/p
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pSo DHS arbitrarily selected the lower of two equally valid numbers, considered providing that number, but then went with a much lower number because of “considerations.” What were those considerations? Later, DHS explains:/p
blockquotepem[This number] reflects a balancing of a number of factors including the demand for H‑2B visas for the second half of FY 2022; current economic conditions; the general trend of increased demand for H‑2B visas from FY 2017 to FY 2021; H‑2B returning worker data; the amount of time remaining for employers to hire and obtain H‑2B workers in the fiscal year; concerns from Congress, state and local elected officials, U.S. businesses, chambers of commerce, and employer organizations expressing a need for additional H‑2B workers; and the objectives of E.O. 14010 [instructing DHS to enhance access to visa programs for nationals of the Northern Central American countries.]/em/p
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pThese considerations all seem to support using all the H‑2B visas. None obviously justify a lower cap. The closest might be the “amount of time remaining for employer to hire and obtain H‑2B workers”—which is basically saying “because we wasted so much of the year, we don’t think H‑2B employers will use the visas, so we’re going to preemptively trash them.” This is an astonishing admission, but more importantly, DHS is not required to guess how many visas will get used. According to a href=https://www.congress.gov/bill/117th-congress/house-bill/2471/textthe bill Congress passed/a, DHS can set the cap high enough to assure that the “needs of American businesses” are met. It doesn’t need to guess the exact need./p
pThe rule is 141 pages, and it mentions high job openings, low unemployment rates, high demand from employers, and much else, but it includes absolutely nothing at all that would explain its decision not to make available all H‑2B visas. In fact, the rule requires H‑2B employers to prove “permanent and severe financial loss” if they don’t get workers. DHS is effectively saying that it is willing to impose “permanent and severe financial loss” on employers rather than issue all these visas./p
pDHS is also requiring employers to re‐​advertise these positions to U.S. workers (who already turned them down and have literally millions of other, better options for permanent, not seasonal, employment). Its reason for requiring employers to re‐​recruit U.S. workers is that the Department of Labor’s labor certifications have become “stale” since it is now 7 weeks after the workers were supposed to arrive. In other words, DHS is using its own delay in issuing the rule to impose more costs on U.S. employers. This may be the closest we will ever get to an explanation for the delay./p
pThe Biden administration had a full year to a href=https://www.cato.org/blog/uscis-needs-permanent-regulations-h-2b-supplemental-cap-increases#:~:text=USCIS%20Needs%20Permanent%20Regulations%20for%20H%E2%80%912B%20Supplemental%20Cap%20Increasesamp;text=U.S.%20Citizenship%20and%20Immigration%20Services,half%20of%20fiscal%20year%202021.fix the process/a for the H‑2B supplemental cap, and it failed to do so. The rule was as late and as arbitrary as last year’s rule (see Table 1). Congress must fix this inexcusable mess. It should simply exempt returning workers from the H‑2B cap as it did in 2005, 2006, 2007, and 2016. A bipartisan bill—a href=https://www.congress.gov/bill/117th-congress/house-bill/3897?s=1amp;r=3#:~:text=Introduced%20in%20House%20(06%2F15%2F2021)amp;text=This%20bill%20modifies%20the%20H,civil%20penalties%20for%20program%20violations.The H‑2B Returning Worker Exemption Act/a—would do just that. But it should at a minimum require the administration to make its determinations within 1 week of Congress authorizing an increase. There is just no reason to delay./p
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/ppemNote: DHS a href=https://www.federalregister.gov/documents/2022/01/28/2022-01866/exercise-of-time-limited-authority-to-increase-the-fiscal-year-2022-numerical-limitation-for-the#footnote-12-p4725previously increased/a the H‑2B cap for FY 2022 by 20,000 for the first half of the year. Of this amount, 17,185 were issued. If these numbers were counted as reducing the 67,792, DHS would be wasting “only” 15,607 visas as opposed to 32,792. But as I a href=https://www.cato.org/blog/dhs-isnt-releasing-h-2b-visas-despite-border-crisispreviously explained/a, the authority for the 1st half increase came from an extension of the FY 2021 authority under which only 22,000 were used, leaving up to at least 44,792 visas available. It was possible to interpret this authority (as DHS appeared to) as permitting it to use the authority up to the maximum of 67,792. DHS chose to only offer 20,000. /em/p
pemDHS does not directly discuss this issue, but in the language quoted above, DHS seems to adopt the somewhat lower 64,716 as the maximum permitted, not counting the 20,000 toward the maximum permitted. This is correct. The limiting language in the statute (“not more than the highest number of H‑2B returning workers”) only caps the use of specific authority provided in that bill. It does not apply to other authorities outside of that bill. Besides the FY 2021 authority, there are also some other minor exemptions to the H‑2B cap. /em/p