Expanding Temporary Work Visas: Congress’ New Efforts Explained

After two of the biggest years yet for hiring temporary foreign workers in the US, lawmakers are aiming to use a Homeland Security Department spending bill to give a boost to businesses seeking to bring in workers from abroad.

The Biden administration has steadily increased the number of visas available for temporary foreign workers as seasonal industries like landscaping, seafood processing, and hospitality clamored for help to solve worsening labor gaps.

But despite the unprecedented move this year to release all available visas under the H-2B program for temporary, non-farm workers, employers say they are still unable to meet labor demands in the US.

At the same time, dairy producers and farm employers seeking to fill non-seasonal jobs are vying to lift restrictions on H-2A visas for agricultural workers that have locked them out of the program.

The House version of the DHS spending bill would ease some of the limits on both programs for employers to add temporary foreign workers. But those efforts are likely to face heated opposition as the appropriations process moves forward.

1. What are the current visa limits?

H-2B visas for seasonal, nonfarm jobs are capped by law at 66,000 each fiscal year, with half of those designated for hiring in winter months and the other half for summer months.

Since fiscal year 2017, Congress has passed a series of laws giving DHS, in consultation with the Department of Labor, the discretion to issue additional visas after employers claim the full amount allowed under the statutory cap. Those agencies can release nearly 65,000 supplemental visas—based on labor market conditions, trends in demand for temporary work visas, and input from elected officials and employer groups.

Only employers at risk of irreparable harm without all requested foreign workers are eligible for the supplemental visas. They’ve also been limited for the most part to returning workers previously employed on H-2B visas. In recent years, however, the Biden administration also has reserved a share of those supplemental visas for workers from El Salvador, Guatemala, Honduras, and Haiti as part of efforts to stem irregular migration to the US.

For the first time in fiscal year 2023, the administration released the full amount of visas under that supplemental cap —a sign of pressure from businesses and lawmakers to allow additional foreign workers amid an ongoing domestic labor crunch. In announcing the decision, Homeland Security Secretary Alejandro Mayorkas said the agency was moving with “unprecedented speed” to meet the needs of American businesses planning for peak labor needs.

2. Why are the odds of getting workers worsening?

Seasonal businesses faced challenges filling job openings even before the post-pandemic labor crunch. In the 10 years before Covid-19 restrictions temporarily limited the arrival of foreign workers in the US, the number of H-2B visas grew by more than 105%.

Seasonal employers have struggled to replace American-born employees who are aging out of the workforce at the same time that the share of less-educated workers who would typically fill those jobs has declined. Tougher immigration enforcement and a tighter labor market have added to challenges filling seasonal jobs in many industries.

In FY 2021, the DOL certified more than 181,000 positions for H-2B visas after determining that employers couldn’t find US workers for those jobs and that hiring foreign labor wouldn’t adversely affect the wages or working conditions of American workers. Certifications rose by 8% the next year to more than 211,000, according to a Congressional Research Service report—indicating demand well above available visa numbers.

With an increasing number of employers applying for a limited number of seasonal work visas, the odds are less certain that businesses that count on the H-2B program will get the workers they need.

H-2A visas for agricultural workers have no cap, and jobs certified by DOL have skyrocketed in recent years: the 370,000 positions approved in fiscal 2022 are more than double the amount in 2016.

But the farming industry is still pushing to remove restrictions that limit the visas to seasonal and temporary occupations. Those rules prevent farms from filling jobs in dairy production, for example, and other year-round occupations where they’ve struggled to meet year-round labor needs with hiring in the US.

3. What do employers want from Congress?

Seasonal businesses have urged Congress to add an exemption to the annual H-2B cap for returning workers previously employed under the program. Congress previously passed such an exemption for fiscal years 2005, 2006, 2007, and 2016.

Instead of waiting for the DHS to use its authority to release additional, discretionary visas for the coming year, the returning worker exemption would offer more certainty that additional visas would be available when the annual cap is met.

It could also mean more visas than would be available than under the supplemental cap, thanks in part to the larger number of workers employed on supplemental H-2B visas in recent years.

Even if the increase isn’t dramatic, employers say their fortunes wouldn’t depend so heavily on the annual visa lottery or the speed with which DHS and DOL make determinations on supplemental visas.

4. What legislation is being proposed?

The House Appropriations Committee in June approved a fiscal year 2024 DHS spending bill that would add a returning worker exemption covering any employee counted against the statutory H-2B visa cap during the previous three fiscal years.

The Senate’s version, approved by that chamber’s Appropriations Committee in July, includes language authorizing supplemental H-2B visas rather than the returning worker exemption.

The House legislation also would allow employers to bring over workers on H-2A visas without regard for whether the job being performed is temporary or seasonal, a win for dairy producers and controlled climate farms.

Business groups have welcomed both provisions as critical moves to fixing worker shortages.

5. What opposition is expected?

Getting these provisions included in the DHS spending package was a big win for business groups, but they’ll still have to survive the amendment process in the House and conference negotiations with the Senate.

The H-2B returning worker exemption has received bipartisan support in particular from lawmakers with significant seasonal industries in their districts. But lawmakers from both parties have also pushed back on previous visa expansions.

Democratic lawmakers in the past have offered proposals to restrict employers with records of labor violations from accessing temporary visas. And GOP lawmakers are expected to receive pressure from organizations that oppose increased immigration, which argue that boosting the foreign labor force harms US workers.

Those groups, which heavily influenced Trump administration immigration policies, plan to pressure lawmakers to strip out the provisions.

Read More:

• Work Visa Expansion Aims to Ease Border Surge, Summer Labor Woes
• Congress Needs to Fix Immigration Visa Quotas to Boost Economy
• Winning H-2B Lottery Means Higher Production, US Worker Hiring
• DHS to Issue All Available H-2B Temporary Work Visas In FY 2023