Lawmakers Working Under the Radar to Increase H-2B Visas

Lawmakers Working Under the Radar to Increase H-2B Visas
Reports are coming from the Hill that certain lawmakers are quietly working to increase the number of unskilled workers allowed into the U.S. by surreptitiously raising the H-2B visa cap. The leading proponents of such a move are Senator Barbara Mikulski (D-MD) and Congressman Bart Stupak (D-MI), who have introduced the "Save Our Small and Seasonal Business Act of 2007" (S.988/H.R.1843) and are going from Member to Member to gain support. This legislation would increase the number of unskilled foreign workers in the U.S. by exempting H-2B workers who have been in the U.S. "during any 1 of the preceding 3 years" from the 66,000 cap when they reenter the U.S.

The H-2B program is a temporary non-immigrant worker program through which U.S. businesses import tens of thousands of unskilled foreign laborers each year to perform non-agricultural work. Last year, for example, over 134,000 non-immigrants were brought into the U.S. as H-2B workers, nearly one-third of whom were employed as landscapers and at least one-tenth of whom worked in the resort industry. (U.S. Department of Labor, Office of Foreign Labor Certification, Performance Report: March 28, 2005-September 30, 2006, September 17, 2007). The maximum duration of an H-2B visa is one year.

Under long-standing law, the number of H-2B visas issued in a year is capped at 66,000. Each fiscal year, half of these visas become available in October and the other half becomes available beginning in April. Often, these H-2B visas are all apportioned before they are even released. In this year, for example, applications for the visas coming available in April were already over 33,000 in March. (Denver Post, October 4, 2007).

However, instead of putting pressure on employers to increase wages or seek out American workers to make up any labor shortfalls, Congress increased H-2B visas in both 2005 and 2006. This was the result of Senator Barbara Mikulski (D-MD) successfully offering amendments that provided a temporary back-door way to avoid the H-2B cap. The Mikulski language allowed an H-2B worker who had received his or her visa in any of the previous three years to return without being counted toward the cap. Thus, a business could get around the cap entirely by rehiring previous H-2B workers. According to the Department of Homeland Security, in fiscal year 2006, the total number of admissions of returning workers into the U.S. was 36,792. Department of Homeland Security, USCIS, 2006 Statistical Yearbook, Table 26: Nonimmigrant Admissions (I-94 Only) By Class Of Admission: Fiscal Years 1998 To 2006, 2007).

Through the Save Our Small and Seasonal Business Act of 2007, Congress is once again entertaining pleas from business to renew the returning worker exception. And because simply renewing the returning worker exemption would not be enough to appease business interests, the legislation offered by Senator Mikulski and Congressman Stupak this year has no sunset. The legislation would immediately permit up to 264,000 people to enter the country under the H-2B program—66,000 per year for the three previous years and 66,000 more for fiscal year 2008. This number could then grow at a rate of 66,000 workers per year and by 2017, the potential number of H-2B workers allowed into the country could reach 858,000.