DHS Isn’t Releasing H-2B Visas Despite Border Crisis &Labor Shortage

pa href=https://www.cato.org/people/david-j-bier hreflang=undDavid J. Bier/a/p pOn September 30, Congress a href=https://www.federalregister.gov/documents/2021/05/25/2021-11048/exercise-of-time-limited-authority-to-increase-the-fiscal-year-2021-numerical-limitation-for-theauthorized/a the Department of Homeland Security (DHS) to issue additional visas for H-2B workers who have job offers in seasonal nonagricultural industries, but DHS is failing to use the authority even though a href=https://www.uscis.gov/newsroom/alerts/uscis-reaches-h-2b-cap-for-first-half-of-fy-2022#:~:text=U.S.%20Citizenship%20and%20Immigration%20Services,half%20of%20fiscal%20year%202022.the cap/a for the first half of fiscal year 2022 (October to March) was reached on October 12. Yet it’s been anbsp;month, and DHS has made no indications that it will release any more visas to let workers in legally, despite a href=https://www.wola.org/2021/10/weekly-u-s-mexico-border-update-2021-migrant-encounters-reports-on-border-agencies-inhumane-culture-remain-in-mexico-protested-senate-appropriation/unprecedented arrests/a of immigrants entering illegally along the southwest border, a href=https://fred.stlouisfed.org/series/JTSJOLunprecedented job openings/a, and a href=https://www.cato.org/sites/cato.org/files/2021-11/SEA%20letter%20to%20Mayorkas%202021.pdfrepeated/a a href=https://www.cato.org/sites/cato.org/files/2021-11/10-14-21%20H2bWC%20Final%202022%20Cap%20Letter%202.pdfrequests /afrom businesses./p pIn fiscal year (FY) 2021, Congress a href=https://www.federalregister.gov/documents/2021/05/25/2021-11048/exercise-of-time-limited-authority-to-increase-the-fiscal-year-2021-numerical-limitation-for-theauthorized/a an additional 64,716 visas above the normal annual cap of 66,000, basically doubling it. But DHS decided only to issue an additional 22,000—a href=https://www.cato.org/blog/government-failed-use-about-400000-visa-cap-slots-fy-2021wasting/a 42,716 visas. On September 30, however, the last day of the FY 2021, Congress extended this authority into FY 2022nbsp;in the continuing resolution (CR) government funding bill (Division A, Sec. 101(6)), effectively giving DHS anbsp;second chance to use emat least/em the 42,716 wasted visas from last year./p pThe CR authority expires on December 3, 2021 when the government funding bill expires. Now DHS has less than one month to issue anbsp;rule—which, in FY 2021, is five days fewer than it took to write and issue a href=https://www.federalregister.gov/documents/2021/05/25/2021-11048/exercise-of-time-limited-authority-to-increase-the-fiscal-year-2021-numerical-limitation-for-theanbsp;rule/a from the time it a href=https://www.dhs.gov/news/2021/04/20/dhs-make-additional-22000-temporary-non-agricultural-worker-visas-availableannounced/a it would increase the cap. This means that DHS would need to decide what is going to do, announce it and write anbsp;rule in anbsp;month. That’s anbsp;tight timeline, so DHS may have already missed its chance under anbsp;December 3nbsp;timeline. Although Congress will almost certainly extend the authority by December 3, DHS cannot (and should not) assume this. It should act immediately. /p pWhen DHS dithered about issuing an H-2B rule in the spring, Inbsp;a href=https://www.cato.org/blog/uscis-needs-permanent-regulations-h-2b-supplemental-cap-increasessuggested/a that DHS issue anbsp;general regulation outlining how it will allot visas with as much specificity as possible to prevent delays in issuing additional visas. For instance, it could say “whenever additional visas become available, DHS will issue them as follows.” Even if this issue isn’t codified as anbsp;regulation, it makes sense for the agency to adopt, at anbsp;minimum, guidance so that its employees and stakeholders are aware of exactly how it will respond./p pThe regular H-2B cap is divided into two parts, one allotment for each half of the fiscal year (33,000 for October to March, 33,000 for April to September). Demand for H-2B visas is historically much lower in the winter than in the summer, but the winter demand has increased every year, and since 2014, the winter cap for the first half of the year has been reached earlier and earlier. DHS should have known the first half cap would be reached early this year./p pThe main industry that would benefit from H-2B visas during the winter months is Alaskan seafood. Other businesses that may need them during the winter months are forestry, hospitality, and landscaping in warm weather locations. Many other landscapers who need visas for the spring would move their start dates up from April to February and March to take advantage of anbsp;broader winter allocation, even though most work will be done in the summer./p pThe language in the September 30 CR bill is ambiguous about how much the cap is increasing. It states that it is extending the authority under the FY 2021 funding bill to increase the H-2B cap for FY 2021 into FY 2022. The authority that is being extended was originally intended for FY 2021, but the bill doesn’t say what an extension means exactly. It could mean that it is 1) extending the authority to issue emthe wasted visas/em (42,716) that Congress authorized for FY 2021 into FY 2022 or 2) extending emthe authority/em from FY 2021 to raise the H-2B cap the full amount (64,716) in FY 2022./p pCongress will also pass an entirely new appropriations bill for FY 2022 (not anbsp;CR or extension of 2021 funding) in December. As in every major appropriations bill since 2017, this legislation will likely contain new H-2B language explicitly authorizing an additional 64,716 visas emfor FY 2022/em—rather than just extending the FY 2021 authorization—but it’s unclear whether the fact that DHS would have already issued some more visas under the FY 2021 authority (extended into FY 2022) would mean that the amount available after December would be reduced. Plausibly it would not need to be, but DHS might decide otherwise./p pIdeally, DHS would issue 42,716 leftover from last year in the first half of FY 2022 and 64,716nbsp;in the 2nd half when Congress gives it new authority to increase the cap again in December. But the debate about how many visas are being authorized is largely irrelevant. DHS’s unwillingness to use more than anbsp;third of the additional visas available last year makes it highly unlikely that DHS will issue even 64,716 visas. By not releasing emany /emduring the winter, it is increasing the probability that DHS will waste H-2B visas this fiscal year (no matter how the provision is interpreted)./p pLast year, the U.S. government wasted a href=https://www.cato.org/blog/government-failed-use-about-400000-visa-cap-slots-fy-2021about 400,000 slots/a under various immigration caps for refugees, temporary workers, and permanent residents. The staggering number is anbsp;reflection of anbsp;backlogged and bureaucratically inefficient immigration system. The fact that DHS appears like it may waste more visas this year is anbsp;reflection that it is not dedicated to using whatever powers it has to facilitate legal immigration./p pThis fact is particularly disheartening when the administration is confronting anbsp;historic number of arrests at the border. While numerous factors affect the number of arrests, the primary cause is a href=https://www.cato.org/publications/speeches/ted-talk-creating-order-borderthe lack of legal immigration opportunities/a, leading more immigrants to cross illegally. H-2B visas provide one way to facilitate lawful migration, and it is inexcusable that the agency has not developed anbsp;plan to use every visa authorized for this year. It is even more problematic as there are at least a href=https://fred.stlouisfed.org/series/JTSJOL10 million unfilled jobs/a in the United States. Unless it wants those jobs filled by illegal workers, DHS should make available all H-2B visas./p