Congress is trying to use appropriations expand the H-2B temporary worker program—where migrants are exploitable and have few rights—by 73 percent
The GOP-led Congress is aiming to pass an omnibus appropriations bill to fund the federal government before the current temporary spending bill expires on March 23, 2018. Part of the negotiations include a major effort by legislators in both parties—who are being bombarded by corporate lobbyists in the hospitality, seafood, landscaping, and construction industries—to expand the H-2B temporary migrant worker program. We estimate the proposal would increase the number of H-2B workers that employers can hire in lesser-skilled occupations by at least 73 percent, from 66,000 per year to 114,000.
The H-2B program—like other temporary migrant worker programs—is not a work program that brings immigrants to the United States with equal rights and the option to stay permanently. Instead, it is used by employers carve out a lawless zone in the labor market where migrant workers have few workplace rights in practice, because they arrive indebted to labor recruiters and indentured to U.S. employers.
Nevertheless, rather than focusing on the most urgent immigration issues at hand, including a path to citizenship for immigrants who are in danger of becoming undocumented, like DACA recipients, and those who have Temporary Protected Status, Congress is instead focusing on making changes to temporary worker programs via the appropriations process. Congress has done this a number of times in recent years, something that Republican Senate Judiciary Chairman Sen. Chuck Grassley and Democratic Ranking Member Sen. Diane Feinstein came together last year to criticize for usurping the committee’s jurisdiction over immigration legislation. Other Senators have done the same, including Dick Durbin and Bernie Sanders. The New York Times editorial page and migrant worker advocates alike have also criticized this end-around the normal legislative process.
A year ago we released a report, Temporary Foreign Workers by the Numbers, to help set the stage for a rational, evidence-based dialogue about the size of these programs and how they function, and to call for more and better data which are needed to further analyze the programs’ impact on labor standards for migrant and American workers and the U.S. economy. We estimated that 1.42 million temporary foreign workers were employed in the United States with nonimmigrant visas in the major temporary migrant worker programs accounting for approximately 1 percent of the U.S. labor force in fiscal 2013.
The continued reports of abuse and exploitation in these programs continue and warnings in government audits about the vulnerability of temporary migrant workers have not been addressed. Nevertheless, as discussed below, this year’s proposed amendment on H-2B is proceeding without even a basic analysis of the labor market implications of the changes or of policy fixes that could improve protections for temporary migrant workers—who are exploitable because they are tied to a single employer and pay thousands in recruitment fees to obtain temporary jobs, and end up earning the same salaries as undocumented immigrant workers who have no rights or labor standards protections. In fact, there’s been almost no coverage in the media about the major immigration policy changes that may occur through the 2018 appropriations legislation and no discussion about how to fix the H-2B program.
We estimate the H-2B appropriations amendment would expand the program by 48,000 workers
The language in the proposed H-2B amendment expands the annual numerical limit of H-2B workers to at least 114,000 in two ways. First, it would raise the annual limit (or cap) from 66,000 workers per year to 90,000—an increase of 24,000 workers. Second, the H-2B amendment would exempt H-2B workers from that cap if they are employed in industries which “support the reconstruction or restoration of physical property and infrastructure or debris clean up and removal” in states which declared a major disaster between August 23, 2017 and the date of enactment of the appropriations legislation. The U.S. Department of Labor (DOL) and the Department of Homeland Security (DHS) would be charged with publishing a list of occupational categories that would be exempt from the H-2B annual cap.
The governors of the states where disasters occurred have not asked for additional temporary migrant workers to do clean up and reconstruction, but members of Congress—from North Carolina and Maryland especially—seem to have decided that the states need them.
To estimate the number of visas included in this second part of the amendment, we calculated the number of H-2B jobs certified in fiscal 2017 in the 13 qualifying states in three major H-2B job categories that we believe are almost certain to be listed as jobs that may support the reconstruction effort in disaster states: construction laborers, forest and conservation workers, and landscaping and groundskeeping workers (see Table 1). Because the number of applications for H-2B workers have exceeded the annual cap in the past few years—and demand peaked this year—we estimate that if these visas were exempted from the cap, employers in non-cap-exempt industries (including hospitality and food processing) would apply for many more of the available visas—at least double the amount, accounting for a second set of 24,000 additional visas (see Table 1).
As a result, we estimate the H-2B amendment would grow the program by at least 73 percent to over 48,000 visas—to a total of 114,000—through the combination of raising the cap and exempting certain job categories in the 13 disaster states
We consider this a conservative estimate for two reasons: First, DOL and DHS may include additional occupations to be exempt from the cap beyond the three listed in Table 1. For example, H-2B welders and pipefitters working in shipyards and refineries in Texas and Louisiana could be exempt from the cap, as well as hotel and restaurant workers. Second, the numbers of workers in these categories could increase if more employers who currently do not use the H-2B program become aware of the exemption.
Number of certified H-2B workers in selected occupations and qualifying disaster states in omnibus H-2B amendment, fiscal 2017
|State||Construction Laborers||Forest and Conservation Workers||Landscaping and Groundskeeping Workers||Grand Total|
Source: OFLC performance data, U.S. Department of Labor, https://www.foreignlaborcert.doleta.gov/performancedata.cfm
Recent history should serve as a warning to the members of Congress pushing for an H-2B expansion. In the landmark human trafficking case David et al. v. Signal International, LLC—arising from post-Katrina reconstruction work done in Louisiana and Texas—a federal jury awarded $14 million in damages to five H-2B workers from India who were trafficked as part of a group of 500 workers. Congressional hearings highlighted the inability of DOL to enforce labor standards in the H-2B program in a disaster recovery area, which means that history could repeat itself if use of the H-2B program is allowed to increase dramatically in disaster zones.
Before the H-2B program is increased by an appropriations process that ignores the Congressional committees of jurisdiction, it need major reforms to increase transparency, much closer inspection and oversight by government agencies and worker advocates, and major changes that can ensure workplace protections for migrant and U.S. workers. These include access to justice measures so that workers who face retaliation and abuse, and who are threatened with deportation to keep them from complaining to labor standards enforcement agencies, can feel empowered to speak out. Without these important reforms, expanding the H-2B program will degrade wages and working conditions for all workers in major H-2B occupations.