U.S. Citizenship and Immigration Services (USCIS) announced today that it would use its authority granted to it by Congress in December to increase the H‑2B visa cap by 22,000 for the second half of fiscal year 2021. The H‑2B visa program—which is for nonagricultural seasonal jobs—has an annual cap of 66,000 that is equally divided between the two halves of the fiscal year. All H‑2B jobs must be offered to U.S. workers before employers can hire guest workers.
The increase is far lower than the demand for visas, and it will cause many businesses to have unfilled positions. The Department of Labor (DOL) announced in January that it had already received more than 96,000 requests to certify H‑2B positions as unable to be filled by U.S. workers (which DOL almost always certifies). USCIS included no explanation for why it decided 22,000 visas, specifically, were appropriate. What follows is a proposal for USCIS to fix the process for releasing supplemental H‑2B visas that will be submitted as a part of a regulatory comment in response to USCIS’s request for ways to improve the immigration system.
USCIS should amend its H‑2B regulations to create a permanent process governing supplemental H‑2B cap increases.
For each of the last five fiscal years, Congress has enacted a provision in DHS annual appropriations that permits the agency to raise the H‑2B visa cap “upon the determination that the needs of American businesses cannot be satisfied … with United States workers who are willing, qualified, and able to perform temporary nonagricultural labor.”[1] The provision allows for an increase of up to 64,716,[2] but USCIS has never increased the cap to the extend permitted under the law.
USCIS has never adopted permanent regulations governing how it will implement this provision. While it is a temporary provision, Congress has repeatedly reenacted it, so USCIS should prepare now for how it would handle this situation in the future, adopting permanent regulations governing supplemental H‑2B caps. USCIS’s current permanent regulations also conflict with its temporary regulations insofar as the permanent regulations require a purely random selection when the petitioned for positions exceed the cap at, while the temporary regulations have imposed additional steps and requirements.[3]
Moreover, USCIS’s temporary rules have imposed unnecessary uncertainty on businesses seeking to hire workers legally and forced them to keep jobs unfilled. These temporary rules suffer from numerous deficiencies:
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