Last year, Congress authorized the Department of Homeland Security (DHS) to effectively double this year’s H‑2B visa cap for nonagricultural seasonal employers in landscaping, forestry, seafood, and other industries. Employer requests exceed the initial cap on February 12, but in over two weeks, DHS has announced no plans to release any additional visas. This failure compounds President Biden’s ongoing error of not rescinding Donald Trump’s H‑2B visa ban on some types of H‑2B workers.

Employers will need their workers by April 1, so the administration has barely one month to notify employers of the new process, employers to re-request workers including whatever new evidence DHS requires, the State Department to issue the visas, and the workers to arrive. By waiting this long, DHS is risking that employers will not receive their workers in time, disrupting important business operations during a time of economic recovery. The Department of Labor (DOL) Inspector General has found that H‑2B delays “have serious adverse effects on business owners and local economies.”

While President Trump justified his visa ban on certain H‑2B workers on protectionist economic grounds, the fact is that all H‑2B jobs are offered to U.S. workers for more than two months prior to the H‑2B workers receiving their visas. Only if no U.S. workers applied would the Department of Labor (DOL) certify the jobs as unfilled and available for H‑2B workers. As Figure 1 shows, H‑2B jobs are routinely not filled by U.S. workers, and in 2020, DOL certified a record percentage of jobs as unfilled: 93 percent.

In the top industries, the percentage of certified jobs was even higher. While there are many H‑2B occupations, the top three in 2020 were landscapers (46 percent of certified jobs), forestry workers (7 percent), and meat and seafood cutters and trimmers (7 percent). Among the top three industry-occupation combinations, the certification rate was even higher: 96–98 percent.

There is no economic justification for forcibly keeping these jobs unfilled. When immigrants quickly fill difficult-to-fill positions, they increase demand for other jobs elsewhere in the economy that U.S. workers are more likely to want. By quickly filling these jobs, immigrants grease the wheels of the economy, allowing production to resume much faster—which opens up more desirable jobs for Americans.

DHS should reject Trump’s primitive protectionist policies and focus on rapidly increasing economic growth, which would benefit everyone in the United States. From 2017 to 2019, the Trump administration failed to increase the H‑2B cap to the extent that Congress authorized it. The largest increase available is 64,716, and the largest increase allowed was only 30,000 in 2019, and in 2020, it failed to provide any visas.

There is no reason for the Biden administration to take this same limited approach. DHS should adopt these two recommendations:

  1. Increase the H‑2B visa cap to the greatest extent possible to guarantee that no jobs go unfilled, costing the U.S. production and overall job growth. When Congress initially adopted this supplemental visa provision in 2017, it did not expect that the administration would cap it. It was supposed to be based on a “determination that the needs of American businesses cannot be satisfied in fiscal year 2021 with United States workers who are willing, qualified, and able to perform temporary nonagricultural labor,” which is already what the DOL certification shows.

  1. Set aside up to 10,000 visas for Guatemalans, Hondurans, and Salvadorans, as a way to channel some workers into a legal alternative to illegal immigration. DHS had planned to release additional visas this way in 2020, but then cancelled the supplemental cap entirely.

Using the supplemental cap is the easiest way to ease the economic burden of the H‑2B cap. But the administration has other ways as well, as I explain in my H‑2B paper as well as in our extensive list of executive actions for the Biden administration. The administration has the ability to certify H‑2B jobs for three years as opposed to a single season, freeing up cap space each year. It can also authorize the spouses and older minor children to work, and it could allow workers to extend their stays beyond the current 3‑year regulatory limit (as the Trump administration did for certain industries in 2020).

These reforms would allow the H‑2B program to reach its highest economic potential, which is extremely useful during the economic recovery. The Biden administration has already rescinded the protectionist ban on immigrant visa recipients for future legal permanent residents partly on the grounds that “the suspension of entry…. does not advance the interests of the United States. To the contrary, it harms the United States including…. industries in the United States that utilize talent from around the world.” This same rationale applies both to the H‑2B visa restrictions and the delay on issuing supplemental H‑2B visas. He should act on both issues immediately.