GAO Addresses Uncertainties Over H-2B Visas

A Government Accountability Office (GAO) report has revealed uncertainty over the H-2B visa process. H-2B visas are intended to help employers fill certain jobs (i.e. landscaping, seafood processing) when no U.S. workers are available. The number of visas is capped at 66,000 and they’re generally first come, first served.

Employers told GAO that they are uncertain over whether the visa process will provide enough workers, or hamper their operations, including their ability to plan expansions.

The Departments of Homeland Security (DHS) and Labor (DOL) have identified possible ways to reduce visa uncertainty, but GAO found they haven’t determined what can be done under current law.

From 2010 to 2018, the number of H-2B workers requested on employer applications increased from about 86,600 to 147,600. Regarding local economic conditions, GAO found that counties with H-2B employers generally had lower unemployment rates and higher weekly wages than those without H-2B employers.

Most of the 35 H-2B employers GAO interviewed said that business planning was affected by uncertainty about whether they would be able to hire the number of H-2B visa workers they requested given the statutory cap. 

Employers who did not receive all H-2B visas requested under the statutory cap in 2018 were somewhat more likely than those who did to report declines in revenue and purchases of goods and services. However, GAO found no clear pattern in changes to the number of U.S. workers hired by these employers. 

Employers interviewed by GAO varied in how they adjusted to having fewer H-2B workers. For example, two seafood employers reported shutting down operations in the absence of H-2B workers, and employers said that barriers to finding U.S. workers included remote location and seasonality of the work.

The review found that federal agencies have identified program changes that consider employers’ hiring needs and protect U.S. workers, but gaps remain in implementation. 

The Department of Homeland Security (DHS), in consultation with the Department of Labor (DOL), has identified options for changing the H-2B visa allocation process to address employers’ uncertainty about receiving visas. However, GAO said DHS and DOL have not assessed any of these options or determined which would not require Congressional action, and employers continue to struggle with uncertainty. 

To help ensure H-2B employers comply with U.S. worker recruitment and other requirements, DOL has audited employers’ compliance with these requirements. However, in general, DOL randomly selected employers for these audits, rather than taking a risk-based approach using factors such as violation trends by industry. 

GAO made five recommendations:

  1. The Director of United States Citizenship and Immigration Services should work with the Assistant Secretary for the Employment and Training Administration to assess options for changing the H-2B visa program and, as warranted, implement changes or submit proposed legislative changes to Congress. DHS and DOL could consider options included in their June 2019 report to Congress and identify those that may be implemented cost effectively and without adversely affecting U.S. workers.
  2. The Assistant Secretary for the Employment and Training Administration should work with the Director of United States Citizenship and Immigration Services to assess options for changing the H-2B visa program and, as warranted, implement changes or submit proposed legislative changes to Congress. DOL and DHS could consider options included in their June 2019 report to Congress and identify those that may be implemented cost effectively and without adversely affecting U.S. workers. 
  3. The Director of United States Citizenship and Immigration Services should work with the Assistant Secretary for the Employment and Training Administration to assess the advantages and disadvantages of considering current economic trends in determining the appropriate number of additional H-2B visas to provide when given this authority by Congress and, as warranted, implement an approach that considers such trends. 
  4. The Assistant Secretary for the Employment and Training Administration should work with the Director of United States Citizenship and Immigration Services to assess the advantages and disadvantages of considering current economic trends in determining the appropriate number of additional H-2B visas to provide when given this authority by Congress and, as warranted, implement an approach that considers such trends. 
  5. The Assistant Secretary for the Employment and Training Administration should take steps to target its audits of H-2B employers to employers with the highest likelihood of violating program requirements; such steps could include moving ahead with developing a system for identifying trends in H-2B employer audit outcomes. 

DHS agreed with GAO’s first recommendation to assess options for changing the H-2B visa program, and noted that it plans to work further with DOL to explore options for improving the H-2B visa program and possibly develop proposals for legislative changes. 

DHS did not agree with our third recommendation to assess the advantages and disadvantages of considering current economic trends—which was the other recommendation directed to the agency. Specifically, DHS said it would continue to work with DOL, as it has done in prior years, if and when Congress delegates the authority to make additional H-2B visas available beyond the statutory cap to DHS. 

The agency also expressed its view that Congress is better positioned to determine whether and how many additional visas should be made available to meet the needs of U.S. businesses. In fiscal years 2017 through 2020, DHS was authorized to increase the number of H-2B visas beyond the statutory cap, after consulting with DOL to determine that “the needs of American businesses [could not] be satisfied…with United States workers…” In exercising this authority in prior years, DHS stated that “[t]he scope of the assessment called for by the statute [in making this determination] is quite broad, and accordingly delegates the Secretary of Homeland Security broad discretion to identify the business needs [s]he finds most relevant.” GAO therefore maintains that  it would be appropriate for DHS, in consultation with DOL, to assess the advantages and disadvantages of considering current economic trends in determining the appropriate number of additional H-2B visas to provide.

DOL agreed with the three recommendations addressed to it. The Department also noted that while further development of a system for tracking industry and occupational trends in H-2B employer violations is currently on hold due to budgetary constraints, when this system is available it will provide the capacity to take a risk-based approach to selecting employers for audits.

Read the full report  at GAO

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