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Immigration Law

A Very Deep Dive on H-2B Visas: David J. Bier

David J. Bier, Feb. 16, 2021

"Since 1952, American employers have hired H-2B foreign guest workers to fill seasonal or temporary jobs that U.S. workers have not taken. Onerous rules kept participation low until the late 1990s, but as more Americans left these types of temporary jobs, more employers accepted the H-2B visa’s restrictive requirements as their only chance to find legal workers. Now the H-2B program is in crisis. Demand for positions has surged to a level more than twice the visa cap, and many employers fail to fill open positions, which hurts American businesses, consumers, and U.S. workers in other jobs. The process’s complexity and uncertainty caused many others not to apply at all, and in 2020, executive orders banning many H-2B workers kept the cap unfilled for the first time in several years. This study explains the complex process that employers must undertake to have a chance to legally employ foreign workers in jobs that unemployed Americans routinely reject. Congress and the administration should reform the H-2B program to make it easier to hire and retain H-2B workers. President Biden should immediately rescind the visa restrictions put in place by his predecessor. ... The H-2B program has more than 175 bureaucratically complex rules that prevent employers from accessing legal workers. H-2B mandated wages have increased at twice the rate of all wages since 2011, but still, few Americans are willing to take these temporary, often tough jobs. The H-2B program expanded rapidly in the early 2000s as fewer illegal workers crossed the border, which caused illegal immigration from Mexico to decline even further. Unfortunately, the low H-2B cap still prevents even employers willing to engage in this lengthy legal process from filling open positions. The H-2B program benefits American employers who cannot find willing U.S. workers at the prevailing wage and increases demand for other jobs that U.S. workers are more willing to fill. To increase these benefits, policymakers should streamline the H-2B application process, base wages on skill level, and raise or eliminate the H-2B cap to accommodate U.S. employers’ proven needs. It should issue visas and status that last a minimum of three years to avoid workers having to reapply every year, and it should allow renewals beyond three years if the workers maintain employment. It can also craft rules to allow foreign workers to easily leave and change employers throughout their three‐​year period to further prevent abuses."