Summary: U.S. Citizenship and Immigration Services (USCIS) should allow the Department of Labor (DOL) to certify H‑2A and H‑2B recurring jobs for up to three years, and DOL should certify those jobs for up to 3 years.
H‑2A agricultural and H‑2B nonagricultural employers almost always need workers to return annually to perform the same job.[1] Employers hire for a season, and they bring back the same H‑2 workers seasonally year after year. To employers, these “returning workers” are just existing employees who have taken a seasonal hiatus.[2] Yet USCIS and DOL refuse to recognize this basic business reality, so USCIS only permits DOL to certify H‑2 recurring jobs for a single season,[3] and DOL requires re‐advertising the position every year[4] and has a nonpublic practice of prohibiting advertising the job only to those who commit to return for additional years.[5] This means repeatedly following a process that costs thousands of dollars, often delays H‑2 workers’ entries until after the date of need, and rarely ever turns up any U.S. workers.[6] Such pointless costs incentivize other employers to hire illegally.
USCIS and DOL should amend their regulations to allow employers to advertise only to those workers who commit to return each season and certify the recurring job for up to three years. Nothing in the law requires H‑2 labor certifications every year. While the employer’s “need” must be “temporary,” the H‑2B regulations already recognize that for most employers, “the underlying job is permanent,”[7] and this is acceptable so long as the employer’s “need” is still temporary, implicitly within a given year.[8] Moreover, for both H‑2A and H‑2B programs, DOL requires employers to prove that the employer’s needs recur annually (i.e., are permanent) unless the temporary job is based on a one‐time or intermittent need, acknowledging the same fact.[9]
With three‐year certifications, Americans would still have a chance to take the job every three years,[10] and the knowledge that the job is more than just for the one season could even induce a few more U.S. workers to apply. Three years would match USCIS’s existing three‐year limit on continuous H‑2B and H‑2A status in the United States[11] as well as USCIS and DOL’s (rarely used) limit on H‑2B approvals based on a temporary, one‐time need of three continuous years.[12] Both limits are not found in the law and are arbitrary, but it is logical to at least harmonize these existing periods with the regularity of DOL’s labor certification requirement.
Beyond the regulatory relief, this action would provide more visas under the H‑2B annual cap of 66,000 visas.[13] Because DOL’s labor certification indirectly determines the validity period of the visa under DOS’s existing regulations,[14] workers with H‑2B recurring positions certified for three years would receive three‐year visas, so they would not need a new one each year, freeing up visas for other workers.[15] With more cap space, almost all H‑2B jobs would be filled, increasing economic growth. Moreover, few policies have reduced illegal immigration from Mexico more than expanding visas for seasonal Mexican workers.
DOL should certify H‑2 recurring jobs for up to three years, effectively exempting those returning to the same job from DOL’s labor certification process and the H‑2B cap for two years.
This was submitted as a comment to USCIS’s federal register request for ideas to reduce barriers to legal immigration.
[1] Office of Foreign Labor Certification, “Performance Data,” Department of Labor, 2020.
[2] As a legal matter, this is not the case, but as a practical matter, it is how many employers understand it. USCIS should be clear that by certifying a job across multiple years, it is not actually deeming workers a current employee when they are laid off during the down season.
[3] 8 CFR § 214.2(h)(6)(iv)(B): “The Secretary of Labor may issue a temporary labor certification for a period of up to one year”; and 20 CFR § 655.103(d) (2019).
[4] 20 CFR § 655.15(f); and 20 CFR § 655.6(b) (2019).
[5] Based on interviews with attorneys.
[6] David J. Bier, “H‑2A Visas for Agriculture: The Complex Process for Farmers to Hire Agricultural Guest Workers,” Cato Institute, Immigration Research and Policy Brief no. 17, March 10, 2020.
David J. Bier, “H‑2B Visas: The Complex Process for Nonagricultural Employers to Hire Guest Workers,” Cato Institute, Policy Analysis No. 910, February 16, 2021.
[7] 20 CFR § 655.6(a); and 8 CFR § 214.2(h)(6)(ii)(A) (2019).
[8] 20 CFR § 655.6(b) (2019).
[9] H‑2B: 20 CFR § 655.6(b) (2019); and H‑2A: 20 CFR § 655.103(d) (2019).
[10] H‑2A regulations should simultaneously eliminate the “50 percent rule” requiring that farmers accept U.S. applicants even after H‑2A workers start through half the work period, which is unfair in its own right but also incompatible with this reform. 20 CFR § 655.135(d) (2019).
[11] H‑2B: 8 CFR § 214.2(h)(13)(iv) (2019); and H‑2A: 8 CFR § 214.2(h)(5)(viii)(C) (2019).
[12] 8 CFR § 214.2(h)(6)(ii)(B) (2019).
[13] 8 USC § 1184(g)(1)(B); and 8 USC § 1184(g)(10) (2018).
[14] DOL’s labor certification determines the validity period of USCIS’s petition for nonimmigrant workers under 8 CFR § 214.2(h)(9)(iii)(B), and the petition determines the validity period of the visa under DOS’s regulations (22 CFR § 41.53(c)).
[15] For workers who do not need visas, USCIS only counts the first entry pursuant to a new approved petition toward the H‑2B visa cap. U.S. Citizenship and Immigration Services, “Characteristics of H‑2B Nonagricultural Temporary Workers: Fiscal Year 2019 Report to Congress,” April 29, 2020.
