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Should We Be Concerned About Amending the H-2B Visa Cap?

Should We Be Concerned About Amending the H-2B Visa Cap?

Expanding the guest worker program is part of the funding bill because, why?

Among the various random provisions in the 2,000+ page omnibus spending bill rattling around Congress is the amending the condition of the H-2B visa annual cap.

The bill itself is indefensible. Cobbling together a 2,000 page tax-payer funded Christmas wish list, expediting it through both chambers and on to the Oval Office within 72 hours is hardly good government. It’s particularly problematic when the bill is spiked with substantial immigration reforms.

That being said, is amending the H-2B visa allocation a bad thing?

The H-2B visa (along with its H-2A counterpart) is the guest worker program everyone on the immigration reform bandwagon loves to talk about but pretends does not exist.

H-2Bs are for seasonal, one-time employment only. They’re not used, nor will they be approved if the job is ongoing under normal circumstances. H-2Bs typically cover the oft cited, “jobs Americans don’t want.” H-2Bs are job specific, employer specific, and rarely (in my experience) see dependents tagging along. Employers are required to pay all costs for getting people here and sending them home. Like most other visa types where work is permitted, petitions must first be approved by the Department of Labor (DOL) before being sent to United States Citizenship and Immigration Services (USCIS) for processing.

They also bear low risk of overstay (again, in my experience), because workers come to the U.S., do their manual labor jobs, pocket the cash, and take their wad of Benjamins back home. Before you get up in arms about taxes, for repeat workers the whole “substantial presence” test kicks in and eventually, they are taxed on their income.

In my past immigration law life, I processed a fair number of H-2B petitions. My hatred of H-2Bs can be reduced to three factors:

1) They’re more complicated than other visa petitions and not in fun ways. H-2Bs are a hybrid of old school labor certification petitions (a step in the employment-based green card process) and regular ol’ visa petitions (if such a thing exists).

2) Trying to get documentation needed from temporary foreign field laborers is a nightmare. Particularly when up-to-date identification and other requisite information is not necessary for the course of business in the country from which the H-2B applicants are traveling.

3) Denial rate was high compared to other visa types. Why? See #2.

H-2Bs are costly to employers who are required to pay all costs associated with the petition, legal fees, not to mention the hassle of dealing with a minimum of four government agencies. It’s much cheaper to employ domestic help. Which brings us back to the “jobs Americans don’t want” issue.

Sen. Sessions said the bid would quadruple the cap number. But that’s not entirely accurate, it’s also not technically wrong.

The section he’s referring to in the omnibus bill would not count previous H-2B holders against the cap for the coming fiscal year, opening up room for other new applicants:

“SEC. 565. Section 214(g)(9)(A) of the Immigration and Nationality Act (8 U.S.C. 1184(g)(9)(A)) is amended by striking ‘‘2004, 2005, or 2006 shall not again be counted toward such limitation during fiscal year 2007.’’ and inserting ‘‘2013, 2014, or 2015 shall not again be counted toward such limitation during fiscal year 2016.’’

Sessions went on to say, “our immigration system must serve the national interest. Flooding this loose labor market with additional low-skill labor hurts the wages and reduces the job prospects of those who are recent immigrants and native-born who are struggling the most.”

Also not accurate. The H-1B, H-2B, and H-2A alike are all job and employer specific for a reason — to prohibit foreign nationals from using the H visa to get to the U.S. only to hop from job to job. Changes in employment, even a promotion or demotion, must be approved by the DOL and USCIS.

And the national interest? What if that national interest involves tracking and taxing low-skill labor as opposed to ceding those jobs to illegal immigrants?

Randel K. Johnson of the Chamber of Commerce elaborates:

“It is clear as a matter of logic that legal temporary worker programs for lesser-skilled workers would enhance U.S. security and border control,” Johnson says in his prepared remarks

Johnson continues: “To be blunt, and less academic, job availability in this country will always be a magnet for those in less well-off countries that are looking to better themselves and their families. Unfortunately, that magnet has led to illegal immigration, despite significant efforts at improved border control. The U.S. can help eliminate the incentive for illegal immigration if temporary worker programs can be used to fill available jobs – assuming that efforts have already been made to fill those jobs through the recruitment of U.S. workers.”

Though the current cap of 66,000 H-2B visas is seldom reached, providing wiggle room within the cap should (in theory anyway) entice legal labor. I would be wholly on board with raising the H-2B cap if an enforcement component were attached, though I’m not a fan of how this reform is being pushed.

Sadly, much needed enforcement measures like a border fence, aerial surveillance, more boots on the ground, and updated exit tracking technology were part of the funding brawl last year that was ultimately torpedoed by the House Freedom Caucus.

Finally, while the H-2B is getting a bad rap and like other visa types, is largely misrepresented in the worst of ways, I object to the fact that a reform like this was lumped in with all kinds of other garbage. The public deserves the opportunity to weigh in on immigration reform efforts, especially when that reform includes making more immigration opportunities available.

Follow Kemberlee on Twitter @kemberleekaye


Update: This post has been amended to reflect the fact that the omnibus bill does not call for raising the cap, but for exempting previous H-2B holders from counting against cap numbers. To say the cap would quadruple assumes all previous H-2B holders would apply for renewal next fiscal year.


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The American worker is totally screwed again. And, to think we were stupid enough to believe that electing Republicans would make a difference. The ruling class really does not care about us.

It really is us against them.

Sammy Finkelman | December 17, 2015 at 9:24 pm

Though the current cap of 66,000 H-2B visas is seldom reached, quadrupling the number available should (in theory anyway) entice legal labor.

What I am reading says that the cap is indeed being reached. Perhaps you can check this out some more.

Also, it looks to me like that the claim by Senaor Sessions that the H2-B visa cap is being quadrupled is a lie. (and on principle, anything coming from the mouth of Senator Sessions should be distrusted.)

It doesn’t raise the cap at all!

What it does do is exclude from the cap any worker who has already received an H-2B visa in the last three years. So apparently Senator Sessions multiplied the cap by 4.

The only problem with that is, many current or previous workers, were already exempt from the cap. And obviously, it won’t be continuously different workers every year.

Also, the way the cap works, it is actually 33,000 every half year. (Applications cannot be made more than six months in advance of when a job is supposed to start)

So maybe he should multiply the current number by 8?

The maximum duration of a H2-B visa is one year, so I guess that’s his excuse for using one year. But it can be extended up to 3 years total.

Here’s a website that discusses the situation this year.

The system, as it works now, is, as they say, broken. (In fact it is this kind of thing that the word “broken” is properly applied to.)

It is not doing what it is supposedly doing.

It becomes a game and a lottery, with employers having to carefully time their applications, and applications accepted after winning a lottery, and the successful applications going more and more to those who know how to game or work the system.

This results from the fact that the law qualifies certain people for such visas, but then sets a quota that is now far less than the number of people who qualify. The one thing you can then say is that the law is not doing what it is supposedly doing.

The 33,000 cap for employment beginning in the first half of the fiscal year 2015(October 1 – March 31) was reached on January 26, 2015, meaning employers who wanted or needed H-2B visas after January 26, 2015 but wanting the job to start before April 1 were out of luck. All applications filed after that date were rejected. The earlier ones were maybe put in a lottery.

The cap for April 1-September 30 2015 was reached on March 26, 2015.

I wasn’t able to find out where the cap for the first half of fiscal 2016 was but it was about half full by mid to late October.

If this was not to disrupt numerous businesses, something had to be done. That’s why this was included in the bill.

So now all previously hired workers are excluded from the cap. Maybe some people were gaming the system to get in other kinds of workers, but it probably wasn’t possible to rapidly fix that, so they protected the incumbents.


    Kemberlee Kaye in reply to Sammy Finkelman. | December 18, 2015 at 1:35 am

    Thank you for your detailed response. I can assure you petitions are not a game and it’s not about defeating the system. Every check in place, arduous though it may be, is to protect the American job market. Those who game the system usually get caught. I’ve seen it happen on numerous occasions.

    Timing is not a problem; not with proper planning. H-2Bs are no different from cap-subject H-1Bs in this regard. They expire once a year (in most cases) and must be renewed. Renewals can be filed before the cap time in April. I can understand how this might seem confusing from the outside, but from a processing standpoint, it works just fine.

    As for raising the cap — if those who were once subject to the cap are now exempt, that doesn’t necessarily *raise* the cap, but it does create more openings. This is more of a semantic issue than anything.

Finally, while the H-2B is getting a bad wrap


The H-2B Visa needs to die a quick death. What in God’s Perfectly Safe World would the government get involved in dictating the pay scale of foreigners being hired to do tech work?

And contrary to popular belief, American techies are better trained and they speak fluent English. Given these huge advantages, our college graduates will do well pay wise and techie jobs will be plentiful for Americans – if only the government wouldn’t provide corporate welfare to US companies in the form of this stupid visa program.

While I’m sure many silent readers appreciate your factual reporting, how dare you interrupt the ranting and raving and cursing of the Establishment by the Ignorati.

Of course, since they never stop their incessant whining and complaining about imagined wrongs, your mistaking a brief pause for an opening is understandable.

It’s a bad thing.

We need to import unskilled labor even less than we need to import skilled labor.

    DuraMater in reply to mariner. | December 18, 2015 at 1:24 pm

    Actually, we NEED neither. Immigration, legal and illegal has become a net negative for America in recent decades, adversely affecting national security, the economy (a pillar of national security), education and culture.

    Only those entities which reap material gain from the importation of foreign workers (and students, the so-called “refugees”, obstetrical tourists and an endless chain of extended family members)seek to elevate the status and value of non-Americans over that of America and her citizens.

    Not limited to mega corporations and politicians, ethnic front groups and immigration lawyers, the financial incentive for colleges and universities and faith based organizations like Catholic Charities, Lutheran groups and other VOLAGs is a topic few want to acknowledge much less discuss but the impetus of greed is evident in each case. Meanwhile, the safety, opportunities and quality of life in America, indeed, our very citizenship is being sold….For cheap.

95 MILLION working age Americans with no job at all.

There’s no such thing as a job an American “won’t do”.

There’s millions of jobs that never even get advertised here because employers prefer to work with the federal government to find foreigners to work that job for, on average, 2/3 the pay and less than half the benefits – plus not having to pay the employer portion of the payroll tax. Businesses have a HUGE economic incentive to bring foreign labor to the US.

Not one job currently held by an H2-B visa foreigner could not be performed by any American that is physically and mentally capable of working at all. None. For that matter, the H1B visas are similarly granted for jobs that tens of millions of unemployed Americans would LOVE to have and are entirely capable of performing.

Protectionism should be anathema to anyone who dares call himself conservative. It’s wrong when it comes to steel or sugar or footwear, and it’s just as wrong when it comes to labor.

    Ragspierre in reply to Milhouse. | December 18, 2015 at 10:19 am

    While I agree with that up to a point, I won’t let your Libertarian nonsense get a total pass.

    Americans should be filling jobs in America before we look to bring in anyone else.

Since the year 2000, more immigrants, legal and illegal, have entered the country than the number of jobs that have been created. This means that every immigrant, every H1B and H2B visa holder represents nothing more than a welfare case. It may be the immigrant or, more likely, it is the person who becomes unemployed by the immigrant who took their job. Is our economy doing so well and our government so filthy rich that we can afford to employ the world while we pay so much welfare to our own citizens? I think not.

Put them on a boat and send them to China where American jobs have gone.

The Chamber and the Dems want cheap slave labor to keep poor unskilled blacks out of the labor force and on the dole.

I am sorry but I can tell you with 100% assured, that anytime you increase the number of applicants in a labor pool the results are lower wages for the resultant applications.

The simple fact of the matter is that there is NO job an American will not do. Though there is a point that no American will do the job for the compensation that is offered. I work in the STEM fields and see it every day. Companies want to hire someone to do the job but no one will take the job due to the fact that the company does not want to compensate the employee what it is truly worth.

This hiring foreign workers that are willing to work for ½ the wages, artificially holds down wages for Americans.

Ask yourself why engineering wages have been flat lined for the last 10 years.

Almost all wages have not kept up with inflation why?