USCIS Needs Permanent Regulations for H-2B Supplemental Cap Increases

David J. Bier

The Wall Street Journal’s Michelle Hackman reported today that U.S. Citizenship and Immigration Services (USCIS) has decided to use 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 reported 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). Despite the report, USCIS has still not provided any timeline for releasing these supplemental visas, and the report included no explanation for why it decided 22,000 visas 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:

1. USICS has not issued the temporary rules on any consistent schedule. The table below lists when the provision became law, when the cap was reached, and when the temporary rule was finalized (or, in the case of 2020, announced that no cap increase would be forthcoming).[4] USCIS has never finalized a temporary rule in less than two months, and it has often taken even longer after the cap was reached to decide. In Fiscal Year 2021, the agency has already taken nearly 4 months after Congress authorized it to increase the cap to decide whether it will do so and by how much. Each passing year since 2017, USCIS has taken longer to decide the supplemental cap after the provision is enacted by Congress, even though Congress has passed the provision before the cap is filled. These delays can have devastating consequences for businesses and evidence the need for a permanent rulemaking to determine the schedule and methodology for H-2B supplemental cap increases. The USCIS Ombudsman has said that “delays at any point in [the H-2B] process can have severe economic consequences for U.S. employers.”[5]

2. USICS has never allowed public comments on the temporary rules’ methodology and timing of cap increases. In part because of the long delays in issuing them, USCIS has always cited “good cause” to waive this requirement of the Administrative Procedure Act since so much economic harm would result from any delay in the determination. This only further bolsters the case for issuing a permanent rule governing supplemental cap increases, which would allow USCIS to receive and incorporate public feedback into the next year’s supplemental cap.

3. USICS’s temporary rules have not adopted a consistent or transparent methodology for deciding the amount of cap increases. The best reading of the congressional provision is that Congress wanted USCIS to increase the cap whenever the Department of Labor (DOL) determined that a “willing, qualified, and able” U.S. worker was not available, which is what the DOL labor certification process does. Nonetheless, in 2017 and 2018, USCIS increased the H-2B visa cap by 15,000 and 15,000—citing the number of returning workers exempted from the cap in 2016. In 2019, USCIS cited increased demand to justify increasing the cap by 30,000 without explaining where the number came from. In both cases, it claimed that this would be sufficient to meet the demand for workers, yet the Government Accountability Office has found that many employers did fail to fill positions.[6]

Moreover, as the table below shows, the ratio of H-2B certified positions to H-2B statuses granted has exceeded the level in 2016 every year, despite the cap increases.[7] If USCIS had wanted to model the cap increase on the 2016 level, it should have controlled for the change in demand. If DOL had maintained the same ratio of labor certifications to statuses granted, the cap increase should have been about 30,000 in 2017 (not 15,000), 40,000 in 2018 (not 15,000), 42,000 in 2019 (not 30,000), and 49,000 in 2020 (not 0).

To resolve these issues, USCIS should propose a permanent rule governing supplemental cap increases. The permanent rule should simply authorize H-2B status grants up to the maximum allowable under the congressional authorization. Short of this, it should clarify that the supplemental cap will be based on that year’s labor certifications, using the 2016 status to certification ratio. The permanent rule should also make the supplemental visas available on April 1, the start of the second half of the fiscal year and the date when nearly all second half jobs start. It should not require additional filing to access the supplemental cap. But whatever the particulars, USCIS should adopt a permanent rule for H-2B supplemental cap increases so that employers have certainty and can plan ahead.