Samantha Deshommes
Chief, Regulatory Coordination Division, Office of Policy and Strategy
U.S. Citizenship and Immigration Services
U.S. Department of Homeland Security
Re: EPI comment on Agency Information Collection Activities; New Collection: Petition for Nonimmigrant Worker: H-2A Classification and Petition for Nonimmigrant Worker: H-2B Classification (OMB Control Number 1615-NEW; Docket ID USCIS-2021-0017)
Dear Ms. Deshommes,
The Economic Policy Institute (EPI) appreciates the opportunity to submit a comment on the updates to the Form I-129 the United States Citizenship and Immigration Services (USCIS) is planning for the H-2A and H-2B programs.
About EPI: EPI is a nonprofit, nonpartisan think tank established in 1986 to include the needs of low- and middle-income workers in economic policy discussions. EPI conducts research and analysis on the economic status of working America, proposes public policies that protect and improve the economic conditions of low- and middle-income workers—regardless of immigration status—and assesses policies with respect to how well they further those goals. EPI has researched, written, and commented extensively on the U.S. system for labor migration—through public comments, publications, and testimony—including in particular, with respect to the immigrant and nonimmigrant visas that USCIS is responsible for managing and overseeing.
EPI has been a frequent user of data from USCIS with respect to the H-2A and H-2B programs, sometimes having to partner with academics and organizations to acquire it via Freedom of Information Act request, and have argued frequently that USCIS should make the data it collects and stores more readily available to the public, in particular when those data would help protect U.S. labor standards, benefit migrant and American workers, as well as help prevent abuses like human trafficking. As multiple advocacy groups have revealed, many cases of human trafficking are often facilitated through the U.S. legal immigration system, in part because of insufficient oversight and the lack of transparency.1 These comments are motivated by the need for USICIS to do more to protect the migrants that interface with the U.S. immigration system and to provide more transparency about the benefits it grants so they can be better evaluated by the public, to ensure they are consistent with uplifting labor standards for all workers in the U.S. labor force, regardless of immigration status.
I. EPI ENDORSES AND SUPPORTS THE COMMENTS SUBMITTED BY THE MIGRATION THAT WORKS COALITION.
EPI is a founding member of the Migration that Works (MTW) coalition, a coalition of labor, migration, civil rights, anti-trafficking organizations and academics advancing a labor migration model that respects the human rights of workers. MTW has submitted comments with specific recommendations to improve the I-129 forms for the H-2A and H-2B programs. EPI has co-signed those comments and endorses them.
II. USCIS SHOULD TRANSITION TOWARDS ELECTRONIC COLLECTION OF INFORMATION AND FILING FOR ALL IMMIGRANT AND NONIMMIGRANT PETITIONS, ESPECIALLY FORM I-129.
The ability of agencies to collect the key information on immigrant and nonimmigrant visas, and ultimately make that information public, would be much easier if applications for immigration benefits were electronic rather than filled out and submitted on paper forms. This would streamline the entire application and adjudication process and lower expenses, while also making the process easier and more accessible to employers and other stakeholders. Former USCIS director Francis Cissna stated publicly in 2018 that his “top priority” was to convert USCIS into an agency that is paperless when it comes to the agency’s intake forms, which would include electronic applications and petitions. Director Cissna told Bloomberg Law in an interview that “it’s going to happen before the end of 2020,” but that goal never became a reality.2
One of the top priorities with respect to transitioning DHS into an electronic versus a paper-based agency should be to digitize the collection and submission of USCIS Form I-129. USCIS processes 500,000 to one million petitions each year on the Form I-129 alone, which are submitted on paper, sometimes arriving by the ”truckload.”3 Making the form electronic would save the agency and employers significant amounts of time and money. In addition, since a large share of the most valuable information on nonimmigrant work visas comes from the USCIS Form I-129, transitioning to an electronic Form I-129 will ensure that most of the key data on nonimmigrant visas is collected and stored electronically. That in turn will reduce the need for staff time and resources to be spent on preparing annual reports on nonimmigrant visa data or compiling spreadsheets to respond to Freedom of Information Act (FOIA) requests.
III. BACKGROUND ON USCIS DATA THAT IS CURRENTLY AVAILABLE ON NONIMMIGRANT VISA PROGRAMS.
United States Citizenship and Immigration Services (USCIS) collects key information on many of the major nonimmigrant work visas, particularly through information provided by employers on Form I-129, Petition for a Nonimmigrant Worker. Most of the data from the Form I-129 are not currently made public. Beginning in 2017, data that were previously unpublished began to be made publicly available on the Buy American, Hire American (BAHA) page on USCIS’s website, but in 2021 the order was repealed and the site appears to have been put into an archival status by the Biden administration.4
The H-2B Employer Data Hub, which was recently created by USCIS, is an exception and provides useful data on the H-2B program, although the data available could be improved by being published earlier and by linking approved petition data to labor certification data from DOL, for instance by including the corresponding ETA case number. Nevertheless, the Data Hub does not make up for all of the useful data that has been lost in terms of other visa classifications as a result of putting the BAHA data page into archival status.
The USCIS “Reading Room” makes certain data and documents available to the public, noting that it is “providing access to information that had been requested at least three times and had been provided under the Freedom of Information Act,”5 for all data requests. However, multiple data sets I have reviewed are incomplete. For example, in the document available in the USCIS Reading Room titled, “I-129 Approvals for FY 2019,” there should be approximately records for 130,000 H-1B approvals, which was the number of new H-1B approvals in fiscal year 2019. However, there are only records for about 79,000 approvals, which means the data in the excel file likely only represent two fiscal year quarters-worth of H-1B approvals.6
When it comes to H-2A, USCIS makes very little data available. The Reading Room has some data on H-2A employers, in terms of the number of petitions they submitted, but it does not include the number of approved workers or any other key information.
Through the Form I-129, data are collected that describes both employers (company name, location, and denial/approval) and visa beneficiaries (gender, country of origin, and occupation). However, the information that is published by USCIS in the aforementioned locations is not uniform between visa classifications. For example, gender information is available for H-1B workers, but not for H-2B workers.
IV. USCIS SHOULD IMPROVE TRANSPARENCY IN THE H-2A AND H-2B PROGRAMS THROUGH AN UPDATED AND DIGITIZED FORM I-129.
Specific actions on data that USCIS should take to improve the H-2A and H-2B programs through an updated and digitized Form I-129
- USCIS should make data on individual H-2A and H-2B petitions available in a timely fashion and consistent with the categories of information it collects on H-1B and releases through FOIA and on the USCIS Electronic Reading Room.
The individual level (microdata) sets available for H-1B which have been acquired through FOIA requests, some of which are also available on the USCIS Electronic Reading Room, contain individual records on H-1B that list information from petitions, including:
- Fiscal Year the petition was submitted in,
- Whether the petition was approved or denied,
- Date the petition was received,
- Date the petition was approved,
- Whether the petition was subject to the annual cap or exempt from the cap,
- Employer name,
- Employer Zip code,
- Employer state,
- Occupation,
- Occupation code,
- Whether the beneficiary was formerly on an F-1 student visa,
- Whether the beneficiary holds a master’s degree or higher from a US university,
- The name of the US university attended,
- Salary,
- The beneficiary’s country of birth,
- The beneficiary’s education level,
- The beneficiary’s gender, and
- The expected employment start and end dates.
While many of these are not applicable to H-2A and H-2B, the relevant data from the USCIS Form I-129 for H-2A and H-2B should be published. Before the creation of the H-2B Employer Data Hub in 2021, USCIS petition data on H-2B had only been published for one year, 2017, on the BAHA data page, and at the aggerate level. The only H-2A petition data that are public are the names of employers with approved H-2A petitions (although the number of workers approved for each employer is not reported, as mentioned above).
We know that USCIS collects and stores microdata on individual H-2A and H-2B petitions because we have reviewed those records after being acquired through a FOIA request, but they should be made available publicly on a regular basis, and include at least:
- Fiscal Year the petition was submitted in,
- Whether the petition was approved or denied,
- Date the petition was received,
- Date the petition was approved,
- Employer name,
- Employer Zip code,
- Employer state,
- Occupation,
- Occupation code,
- Worksite state,
- The number of beneficiaries (workers),
- Salary,
- The beneficiary’s country of birth,
- The expected employment start and end dates.
Publishing these data in a timely fashion on H-2A and H-2B on the Electronic Reading Room or another section of the USCIS website would make USCIS’s data practices more consistent across visa classifications and be a cost-effective option, using available infrastructure that would benefit the public and assist migrant worker and anti-human trafficking advocates in fulfilling their missions.
- USCIS should no longer use Dictionary of Occupational Titles (DOT) occupation codes for nonimmigrant workers and should begin classifying occupations using Standard Occupational Classification codes.
Data that are made public by the U.S. Department of Labor (DOL) on the H-2A, H-2B, and H-1B work visa programs, as well as for permanent labor certifications, is quite detailed. Those DOL data all utilize Standard Occupational Classification (SOC) codes to classify job occupations that will be filled by migrant workers in those nonimmigrant and immigrant programs, because they are the best and most modern method the government has available to classify occupations. However, those DOL data do not reflect actual approved petitions for immigrant or nonimmigrant workers, they are just the first step in the process when hiring an immigrant or nonimmigrant worker. To illustrate, every year there are approximately one million H-1B jobs certified by DOL, but in fiscal year 2019, only about 130,000 petitions for new employment for H-1B workers were approved by USCIS (the highest total on record for one fiscal year). The data on those 130,000 petitions are the most useful information for analysts and advocates, because they represent actual workers, rather than the DOL information on labor certifications or labor condition applications. But USCIS uses outdated codes for classifying occupations; it uses the Directory of Occupational Titles system (or DOT codes), which are old and outdated, and much broader. As a result, dozens of occupations in the SOC fall could fall under each single DOT code.
There are 867 detailed occupations in the SOC. In the last version of DOT codes (from 1999), there were about 100. There is no rhyme or reason to why USCIS uses the DOT codes, other than the fact that they were already using them before the SOC codes were published. The Government Accountability Office (GAO), in a report about abuses suffered by migrant workers in the context of foreign labor recruitment, titled “H-2A and H-2B Visa Programs: Increased Protections Needed for Foreign Workers,”7 pointed out that their investigative work was more difficult than it had to be when they were reviewing the H-2A and H-2B programs because of USCIS’s use of the DOT codes. Instead of relying on the better USCIS data on petitions, GAO had to rely instead on the DOL data which is not as reliable because it does not represent actual workers.
Here are some of the relevant passages from the GAO report:
While DHS’s USCIS petition data are more accurate than DOL data in terms of the number of workers requested, information about the type of occupations those workers are requested to fill is not coded and maintained electronically using a standard occupational classification system… Instead, they recode the job title from the employer’s petition using an occupational classification system with 15 broad categories. These categories may be further divided into 1 to 12 occupational codes for a total of 83 detailed occupations, as opposed to DOL’s 840 detailed occupations… Officials said USCIS’s current occupational system predates DOL’s use of the SOC system to classify occupations on labor applications. However, the broad and overlapping categories within USCIS’s occupational classification system make it difficult to distinguish the occupations filled by H-2A workers versus H-2B workers even though these programs are targeted to fill occupations in different sectors of the economy.
USCIS plans to change its occupational coding system during its transformation from a paper-based processing of immigration benefits to an electronic processing system, but it has not yet determined which occupational classification system it will use…
By using a nonstandard occupational classification system, the usefulness of USCIS’s data is limited. Ensuring that the electronic petition for H-2A and H-2B visas uses a standardized occupation classification system will better position USCIS to report more reliable data to Congress on the H-2B workers U.S. employers use to fill specific occupations.8
GAO mentioned that USCIS is considering changing their occupational classification system once they move to electronic applications but has not yet decided what it will be changed to. We urge USCIS to abandon the use of DOT codes and begin using SOC codes, consistent with DOL. Doing so will create consistency among key federal agencies in charge of immigration and provide researchers and advocates with a better understanding of the specific occupations that employers are requesting nonimmigrant workers for.
- USCIS should standardize the information that can be inputted into the “Job Title” field on the I-129 form for H-2A and H-2B.
The proposed updated I-129 forms did not appear to have a standardized method to input the job title or occupation code, either by DOT or SOC code. This means that employers will be able to list job titles according to their own names for occupations rather than using the government’s detailed and standardized titles and classifications. I urge USCIS to include a field for a SOC code number, similar to what is required on DOL labor certification documents for H-2A and H-2B, so that organizations like GAO can adequately assess how the H-2B program is being used. Researchers and worker advocates would also be able to assess trends and how the program is operating and, make comparisons on wages and standards that are relevant for the jobs being filled by H-2A and H-2B workers.
SOC codes may be less appropriate for H-2A workers, so an alternative may be necessary. The vast majority of H-2A workers are crop farm workers,9 and there are few other occupations outside of crops. USCIS could for instance, have a drop-down menu or short list of options to be inputted for H-2A occupations, and for crop jobs, have an additional dropdown menu or list of individual crops.
Sincerely,
Daniel Costa
Economic Policy Institute
Endnotes
1. See, for example, Jeremy McLean, The Case for Transparency: Using Data to Combat Human Trafficking Under Temporary Foreign Worker Visas, Justice in Motion, September 2020; Sara Crowe, Human Trafficking on Temporary Work Visas: A Data Analysis 2015-2017, Polaris, June 1, 2018.
2. Laura Francis, “Paperless Intake Is Immigration Agency Director’s Top Priority,” Bloomberg Law, October 17, 2018.
3. See discussion of truckloads of paper applications for temporary work visas arriving at USCIS, in Miriam Jordan, “Visa Applications Pour in by Truckload Before Door Slams Shut,” New York Times, April 3, 2017.
4. USCIS, “Buy American and Hire American: Putting American Workers First,” [data hosting page], archived content, https://www.uscis.gov/archive/buy-american-and-hire-american-putting-american-workers-first.
5. USCIS, Reading Room, https://www.uscis.gov/archive/uscis-electronic-reading-room-opens-the-door-to-transparency.
6. See USCIS Reading Room, “I-129 Approvals for FY 2019,” https://www.uscis.gov/sites/default/files/document/data/I-129_Approvals_for_FY_2019.xlsx.
7. U.S. Government Accountability Office, H-2A and H-2B Visa Programs: Increased Protections Needed for Foreign Workers, GAO-15-154, Published: March 06, 2015, [Reissued on May 30, 2017].
8. U.S. Government Accountability Office, H-2A and H-2B Visa Programs: Increased Protections Needed for Foreign Workers, GAO-15-154, Published: March 06, 2015, [Reissued on May 30, 2017], at 22-24. (Emphasis added.)
9. According to the Office of Foreign Labor Certification, in 2020, 88% of H-2A jobs were certified for farmworkers employed in crop agriculture. See OFLC, “H-2A Temporary Agricultural Program – Selected Statistics, Fiscal Year (FY) 2020 EOY,” Employment and Training Administration, U.S. Department of Labor.
