Category: Immigration and Visas

?The Department of Homeland Security (DHS) is doubling the number of temporary work visas used in the seasonal hospitality and landscaping industries to help employers deal with ongoing labor shortages over the next year.

DHS will provide an additional 64,716 H-2B temporary worker visas for the 2023 fiscal year beginning Oct. 1, on top of the 66,000 H-2B visas already available each fiscal year, split evenly between the fall/winter and spring/summer seasons.

The H-2B visa increase includes an allocation of 20,000 visas to workers from El Salvador, Guatemala, Haiti and Honduras to expand legal pathways as an alternative to illegal migration.

The remaining 44,716 extra visas will be available to returning workers who received an H-2B visa, or were otherwise granted H-2B status, during one of the last three fiscal years.

“At a time of record job growth, this full year allocation at the very outset of the fiscal year will ensure that businesses can plan for their peak season labor needs,” said Secretary of Homeland Security Alejandro Mayorkas.

“This is huge,” said Gray Delany, executive director of the Seasonal Employment Alliance in Washington, D.C. “This visa release is critical to filling the workforce gap faced by seasonal employers, and bravo to DHS for understanding the harm caused by the delays in previous releases. Employers should get their workers on time from this release.”

Tim Hygh, the executive director of the Mackinac Island Tourism Bureau in Michigan, said the additional visas “give our members a better chance of getting employees and allows the amount of time it takes to get these employees processed and to the island in time to start the season next April.”

U.S. Travel Association President and CEO Geoff Freeman applauded the decision as well. “This announcement—the largest ever supplemental visa release—is a lifeline for an industry whose workforce shortage tops a million open positions,” he said. “This will provide the travel industry with thousands of workers ahead of the peak travel season, allowing businesses to adequately prepare for a surge in demand.”

Mayorkas also announced the creation of the H-2B Worker Protection Taskforce, which will focus on protections for U.S. and foreign workers, including ensuring that employers first seek out and recruit U.S. workers for the jobs to be filled, and that foreign workers are not exploited or abused by employers.

Current regulations require employers seeking H-2B workers to test the U.S. labor market and certify that there are not enough U.S. workers who are able, willing, qualified and available for the offered positions, and that employing H-2B workers will not adversely affect the wages and working conditions of similarly employed U.S. workers.

In the coming weeks, DHS is expected to publish a temporary final rule setting forth eligibility and filing requirements for the supplemental H-2B visas and detailing any additional worker protections.

Freeman said the U.S. Travel Association supports permanently increasing the H-2B visa cap. “We will continue to call on Congress to enact a permanent expansion of the H-2B program,” he said.

?Severe and growing backlogs, inadequate funding and an increasing number of lawsuits continue to plague the agency that oversees the processing of employment visas for foreign workers.

The public’s liaison to U.S. Citizenship and Immigration Services (USCIS) said that reducing application backlogs and delays must be the agency’s top focus. According to the Office of the Citizenship and Immigration Services (CIS) Ombudsman, an independent office within the Department of Homeland Security, there were 8.5 million pending applications at USCIS as of April, and over 5 million of those were pending beyond their deadlines. By comparison, the backlog was around 2.7 million in July 2019.

“USCIS has always had its share of backlog issues, but none so severe in recent memory as the ones it currently confronts,” said CIS Ombudsman Phyllis Coven. “These lengthy processing times and the high number of unadjudicated cases—created out of the pandemic’s unprecedented effect on [the agency’s] ability to operate, insufficient revenue and employee attrition—have had a massive snowball effect on the agency’s operations.”

USCIS is setting aggressive processing goals going forward, she said, as well as trying to mitigate the pain points for applicants and petitioners in the meantime so that they may work without fear of losing their immigration status.

Yearslong Delays Exacerbate Waits

USCIS acknowledges that the increase in processing times and the growth of backlogs is a complex problem years in the making, but the shutdown of in-person operations in March 2020 due to the COVID-19 pandemic kicked off a destructive spiral.

“The pandemic led to a 40 percent reduction in immigration filings submitted between March and May 2020, which significantly reduced the agency’s cash flow,” said Ashley Kerr, an attorney in the Columbia, S.C., office of Ogletree Deakins. “This precipitous drop in revenues caused USCIS to twice notify over two-thirds of its staff of a potential furlough due to its anticipated inability to meet payroll expenses.”

The furlough was narrowly avoided in August 2020, but it’s been reported that many employees left the agency anyway, worried about job security.

Kerr added that while the pandemic obviously exacerbated processing delays at USCIS, “some believe that the pandemic revealed potential inefficiencies within the agency. While some factors may have been outside of USCIS’ control, the processing delays for millions of immigration cases may also partly be due to the agency’s policies.”

Data published by Syracuse University found that over 6,000 lawsuits will have been filed against the federal government by the end of fiscal 2022 to compel action from USCIS on individual cases. This is a 50 percent increase in lawsuits compared with the previous fiscal year.

“Lawsuits asking courts to order government employees to decide long-pending immigration filings have increased sharply in the past year,” said Leslie Dellon, a senior attorney at the American Immigration Council in Washington, D.C. She added that people facing delays may view lawsuits as their only means of receiving a decision when they hear nothing back from agencies for months or even years.

“While USCIS is doing much to reduce its backlogs, it is unlikely to change as quickly as the

agency intends,” Coven said. “Focusing only on reducing the backlogs themselves fails to timely address the systemic problems that backlogs have created. The agency must continue to address both.”

Process and Staffing Changes

Experts agree that USCIS needs both operational changes such as improvements to the employment authorization document (EAD) renewal process and increased funding and staffing in order to improve the agency’s functioning.

Kerr said that because “chronic underfunding and understaffing” issues at the agency lead to missed targeted processing times, the ombudsman has recommended that USCIS re-engineer its fee review process to reduce the cycle times for future filings and also hire sufficient staff to eliminate its backlog of cases.

“Fortunately, USCIS has requested additional congressional appropriations for the next fiscal year and is hiring additional employees to address these backlogs, which are critical steps to reducing the overall processing times for both pending and future immigration applications,” she said.

Kerr explained that 97 percent of the agency’s operating budget is derived from the filing fees that are collected with immigration applications. When USCIS forecasts the costs of providing services to process applications, its financial modeling relies on past data, and the process of proposing filing fee adjustments takes time and involves many steps, including a fee review study and a public comment period. The latest fee change proposal took about 2.5 years from start to finish.

Coven said that the agency is working on an ambitious hiring goal of 4,400 positions by the end of 2022. She also recommended changes to the agency’s fee-for-service funding model, including re-engineering the agency’s biennial fee review process “to ensure they fully and proactively project the amounts needed to meet targeted processing time goals for future processing as well as backlog adjudications. Having the right number of staff and ensuring that they receive the robust training they need must be one of the agency’s highest priorities.”

A proposed rule seeking to increase fees and recover USCIS’ recent operating costs is expected from the agency in September.

Processing EADs

Many foreign workers require EADs to work in the U.S. USCIS is currently experiencing an unprecedented backlog for EADs, including initial and renewal applications.

“Delays in renewing EADs interrupt employment for noncitizens who have already proven themselves eligible while simultaneously interrupting the ability of U.S. businesses to employ their workforce continuously,” Coven said.

USCIS has committed to reducing EAD processing times, and Coven has recommended additional improvements to allow for uninterrupted work authorization for eligible, previously approved workers, including:

• Building on existing automatic extension periods to allow for uninterrupted work authorization while the agency adjudicates a renewal EAD application.
• Providing better options for foreign spouses to renew their employment authorization.
• Allowing applicants to file for renewal EADs earlier.
• Continuing to expedite EAD renewals for workers in certain occupations. USCIS has expedited renewal applications for health care and child care workers, for example, and fast-tracking EADs for supply chain workers may be another area to explore, Coven said.
• Exploring more automation of EAD processing.

“USCIS has taken some steps to lessen the impact of EAD processing delays,” Dellon said. “It has lengthened the automatic extension of work authorization for timely filed renewals in certain categories from 180 days after expiration to 540 days.”

The agency also extended the validity period for EADs based on a pending adjustment-of-status application from 1 year to 2 years, reducing the need for a renewal as USCIS processes the underlying application.

Digital Future

The lack of a digital filing option and the continued reliance on paper-based processes have been major contributors to the agency’s immigration case backlog, experts agree.

Coven reported that USCIS’ ongoing efforts to expand online filing and electronic processing—15 years in the making—is nearing a turning point.

Twelve USCIS forms are now available for online filing, and the agency plans to offer “end-to-end online filing and processing for all immigration forms by the end of fiscal year 2026,” she said.

In 2021, EAD applications—the most frequently filed immigration benefit—were added to the agency’s online offerings.

Coven recommended that USCIS make developing an application programming interface, or an API, an immediate priority so that more immigration attorneys and companies that process benefits forms can easily transfer data to agency systems.

“Many attorneys, accredited representatives and other high-volume immigration benefit filers generally do not file online because the USCIS system is cumbersome and inefficient,” she said.

?Foreign guest workers who use the H-2A and H-2B temporary visa programs need better labor protections, according to experts who testified before the House Subcommittee on Workforce Protections on July 20.

“Workers apply for H-2 visas to achieve economic opportunity, to escape poor working conditions, and, ultimately, with a hope that their employment can lead to a better life in America,” said Rep. Alma Adams, D-N.C., who chaired the hearing. “Regrettably, the programs too often fail to deliver on these goals.”

Daniel Costa, director of immigration law and policy research at the Economic Policy Institute in Washington, D.C., said that the U.S. government is failing to meet basic labor standards and provide basic rights to workers in the growing H-2A and H-2B visa programs. The H-2A visa program—the main focus of the hearing—is for seasonal jobs in agriculture, while the H-2B program is for seasonal jobs outside of agriculture.

“Although migrants coming to the United States through temporary work visa programs are legally authorized to work, they are among the most exploited laborers in the U.S. workforce because employer control of their visa status leaves many powerless to defend and uphold their rights,” Costa said. The flaws in the H-2 visa programs are systemic and structural, he said, listing abuses like charging workers exorbitant recruitment fees, keeping them in debt bondage, underpaying workers and allowing abuses to occur, as seen in the Operation Blooming Onion case.  

Rep. Fred Keller, R-Pa., characterized the hearing as Democrats “missing the forest for the trees.” He said that while the H-2 programs do need reforms—especially streamlining regulations for efficiency—discussing the relatively small visa programs “makes little sense” as the growing number of undocumented workers being hired outside legal channels undermines H-2 guest workers and the organizations that employ them.

Leon Sequeira, an attorney representing employers of H-2A and H-2B workers, and a former U.S. Department of Labor (DOL) official serving under President George W. Bush, defended the programs, asserting that H-2A and H-2B workers “may be the most protected workers in the entire economy,” due to all the regulations pertaining to their employment.

“Despite efforts, there will be some employers who do not follow the requirements of these programs, and when that happens no one will dispute that those employers should be held liable for violations,” he said. “But DOL enforcement data shows that only a small fraction of employers violate requirements and that most violations are technical paperwork violations.”

Growth of Guest-Worker Programs

The H-2 temporary work visa programs are meant to help U.S. employers fill vacant jobs, especially when there is a shortage of local workers interested in those jobs.

The H-2A program is uncapped, and visas are valid for up to one year and can sometimes be renewed. H-2B visas are capped at 66,000 per year, for the duration of the job, with possible extensions up to three years.

Costa said that despite the popular narrative that the Trump administration “cracked down” and limited the number of people immigrating to the U.S., temporary worker programs grew during the Trump years. The number of guest workers in the U.S. grew by 13 percent between 2016—the last year of the Obama administration—and 2019, before the COVID-19 pandemic. He pointed out that the expansion of the programs is part of a longer-term trend dating back 30 years to when they were first created in the 1980s.

The combined number of H-2A and H-2B visas issued in fiscal year 2021 was just under 353,000. The size of the H-2A program has more than tripled since 2012, from 65,000 visas issued then to nearly 258,000 in 2021. The number of H-2B workers is set to reach a new high this year as well, due to the addition of 55,000 supplemental visas.

Lack of Protection

Costa and others testified about several areas of potential abuse of guest workers in the U.S., beginning even before they arrive. “Many are required to pay exorbitant fees to labor recruiters to secure U.S. employment opportunities, even though such fees are usually illegal,” he said. “Those fees leave them indebted to recruiters or third-party lenders, which can result in a form of debt bondage.” He added that some workers may arrive in the country and find out the jobs they were promised don’t exist, and in some cases become victims of human trafficking.

He said that there is abundant evidence that temporary guest workers are often legally underpaid or suffer from other violations of labor laws. This has happened partly because the number of Wage and Hour Department and other DOL investigations of H-2 employers has declined sharply since 2000. And when investigations are conducted, wage and hour violations are found in 70 percent of cases, Costa said. Data shows that wage theft is a massive problem in the major H-2B industries as well, he said.

Egregious cases of abuse, such as those found in the Operation Blooming Onion investigation, present tremendous dangers for farm workers and H-2A guest workers, said Teresa Romero, president of the United Farm Workers union. “The allegations in the Blooming Onion case are devastating and include criminal charges for multiple deaths, rape and forced labor,” she said. “The Blooming Onion case demonstrates not just the inherent flaws of the H-2A program, but also the government’s inability to effectively enforce the modest H-2A protections that do exist.”

Romero said that temporary foreign farmworkers fear retaliation and deportation if they speak up about wage theft, workplace abuses or other substandard working conditions because of their vulnerable immigration status.

Defense of the H-2 Visa

Sequeira pushed back on the allegations, saying that while the H-2 programs “are far from perfect,” they are a critical lifeline to thousands of farms and businesses across the country with a temporary or seasonal need for labor each year.

“The H-2A and H-2B guest-worker programs are highly regulated and provide good jobs enabling workers to learn skills, gain experience and earn a significant amount of money to support their families abroad,” he said.

Sequeira added that H-2 guest workers are paid wages set and approved by the DOL and are offered numerous benefits and protections that U.S. workers in the same roles are not required to receive, such as free housing and daily transportation to and from the worksite.

“Some critics even claim that H-2 workers are somehow trapped and cannot leave their employer, but such claims are simply not true,” he said. “Guest workers are free to change from one H-2 employer to another, and thousands do so every year. No H-2A or H-2B guest worker is required to continue working some place they do not want to work.”

As for enforcement, Sequeira said that analysis of DOL data reveals that a “relatively small number of employers is responsible for the vast majority of violations. When that enforcement data is placed in context, it is readily apparent that the overwhelming number of employers follow the law, treat their employees with respect, and provide the pay and benefits those employees are due.”

He added that the major frustration among his clients is that they “go through the trouble to legally hire guest workers through these programs, pay prevailing wages, and end up being audited by the DOL and nitpicked over small violations, while competitors who hire undocumented workers are usually not targeted for enforcement. That’s where the imbalance lies.”

Solutions

Romero said that there are several pieces of legislation pending in Congress that would address some of the H-2A program’s flaws, including the Farm Workforce Modernization Act, a bipartisan bill that includes recruitment protections for H-2A guest workers; coverage of those workers by the Migrant and Seasonal Agricultural Worker Protection Act; and a path to lawful permanent residency. It also lays out a path to legal status for undocumented farmworkers, reforms the H-2A visa program to provide more flexibility for employers and requires nationwide E-Verify use for all agricultural employment once legalization has been phased in.

She also called for the Biden administration to introduce a federal heat standard to protect farmworkers from heat-related death and illness and new rulemaking to substantially reform the H-2A program.

Regarding the H-2B program, Costa recommended Congress pass the Seasonal Worker Solidarity Act, which would improve the process for recruitment of U.S. workers, improve and enhance enforcement of labor standards, and provide H-2B workers with a path to permanent residence that they control.

?Over the next several months, the Biden administration plans to work on policy proposals that continue the reformation of the H-1B visa program for professional foreign workers—including raising the wages of those workers—as well as increasing application and petition filing fees for a range of immigration benefits.

Federal agencies announce their agendas in intervals throughout the year; the latest updates are for proposals roughly scheduled for the end of the year and in 2023, though agencies often extend their deadlines.

H-1B Visa Program Reforms

U.S. Citizenship and Immigration Services (USCIS) intends to offer a rule amending aspects of the H-1B visa program first proposed by the Trump administration.

The proposal has been postponed since December 2021 and is now scheduled for May 2023.

According to USCIS, the rule will:

• Redefine the H-1B employer-employee relationship.
• Establish new guidelines for employer site visits.
• Clarify rules for F-1 students awaiting a change of status to H-1B.
• Clarify the requirement that an amended or new H-1B visa petition be filed if there are material changes to employment, including a new worksite location.

Wage Increases

The Department of Labor (DOL) continues to plan to advance a new prevailing wage regulation, now scheduled for October, based on the public feedback it received in a request for comments conducted last year.

A final rule proposed by the Trump administration raising wages for workers with H-1B visas and employment-based green cards was slated to take effect on Nov. 14, 2022; however, it was vacated by a federal judge in June 2021. The rule was issued in January 2021 as one of the last regulatory actions of the Trump administration.

Another Trump-era proposal reallocating H-1B cap numbers to the highest-paid beneficiaries according to the DOL’s wage levels has been conclusively withdrawn by the Biden administration. President Biden expressed support for salary-based H-1B visa allocation during the 2020 election campaign.

B-1 Visa Proposal Reconsidered

The Department of State revealed that it is now reconsidering its previous proposal to eliminate the practice of allowing foreign nationals to enter the U.S. with a B-1 business visa to perform short-term H-1B work. Originally proposed in October 2020 by the Trump administration, the rule would eliminate a long-standing policy that permitted foreign nationals to enter on a B-1 visa to perform short-term H-1B services in limited circumstances while remaining on a foreign payroll.

B-1 visas will continue to be issued to foreign nationals seeking to engage in permissible business activities, the department said.

L-1 Changes

USCIS showed renewed interest in its longer-term plans to propose amendments to the L-1 visa regulations. Specifically, the agency intends to revise the definition of specialized knowledge, clarify the definition of employment and employer-employee relationship, and potentially impose wage requirements for L-1 visas. A proposed regulation is tentatively scheduled for June 2023.

Immigration Fee Increases

A USCIS proposal to update immigration filing fees is under review at the White House and is expected in September 2022. USCIS is almost entirely funded by applicant fees, which are necessary to administer immigration programs.

The agency most recently updated immigration fees by a weighted average of 21 percent in December 2016. Proposed fee increases in 2020 were blocked by immigration advocacy groups in court, who argued the increases were too high.

DACA Final Rule

A final rule codifying protections for the 600,000 recipients in the Deferred Action for Childhood Arrivals (DACA) program is under review at the White House, the last step before publication in the Federal Register. The rule is expected soon.

The Obama administration established DACA in 2012 to provide protections from deportation and authorization to work to undocumented immigrants brought to the U.S. as children. The program, which had not gone through the regulatory process, has faced multiple court challenges.

Most recently, a federal district court judge in Texas ruled that DACA was unlawful because it was implemented without formal rulemaking, but he left protections in place for the recipients currently in the program.

President Biden directed the Department of Homeland Security in January 2021 to take action to preserve and fortify DACA. The department published a notice of proposed rulemaking in September 2021.