Recent Court Decisions Put a Sharp Spotlight on U.S. H-2B Temporary Worker Visa Program

Business and labor advocates on either side of the temporary worker debate are waiting for the Obama administration to hand down new regulations after a recent series of legal rulings triggered turbulence in the H-2B visa program designed to admit foreign workers to fill temporary low-skill jobs in the United States. Temporarily suspended in March, the program’s regulations remain unsettled, with the new focused attention raising serious questions about the program’s capacity to both fill shortages in the U.S. labor market and afford labor protections to U.S. and foreign workers.

For the tens of thousands of employers and workers participating in the H-2B program, the recent shakeup was ill-timed, occurring only weeks before April 1, when half of the annual quota of H-2B recipients are eligible to begin work, and at a time when thousands of H-2B petitions for summer positions are processed for adjudication. The pause in accepting and processing applications prompted an outcry from employers across the country fearing workforce shortages. Perhaps as a result, the H-2B program reached its annual cap of 66,000 visas for the first time since 2009, and faster than in any year since 2006.

Legal Challenges Beset H-2B Program

Three court rulings have contributed to the H-2B program’s recent woes. On March 4, in Perez v. Perez Judge M. Casey Rodgers of the U.S. District Court for the Northern District of Florida temporarily enjoined and vacated a set of H-2B regulations issued in 2008 by the Department of Labor (DOL). The regulations, issued during the George W. Bush administration, were designed to streamline the ability of employers to hire foreign workers. The plaintiff, a native Floridian, argued that the regulations adversely affected his employment prospects because they loosened the requirements for employers to  recruit U.S. workers before hiring foreign labor, increased the length of time some H-2B visa recipients are permitted to work, and reduced worker protections built into the program.

The March injunction came on the heels of a court ruling in December 2014 in an analogous case in which Judge Rodgers permanently struck down a different set of H-2B regulations, promulgated by DOL in 2012. These regulations, issued under the Obama administration, were quickly preliminarily enjoined and never implemented. In Bayou Lawn v. Perez, the plaintiffs—a landscaping company and the U.S. Chamber of Commerce—argued that the 2012 H-2B regulations would impose significant added costs and burdens on small businesses who sponsor H-2B workers. In contrast to the 2008 rules, the 2012 regulations were designed to expand U.S. worker recruitment requirements and increase employers’ obligations to protect wages and working conditions of both U.S. and foreign workers.  

In both rulings, Judge Rodgers found that under the Immigration and Nationality Act, DOL lacks the authority to issue H-2B regulations. Congress initially vested authority for implementing the H-2B program to the Attorney General, but the 2002 Homeland Security Act transferred enforcement and administration of immigration laws to the newly created Department of Homeland Security (DHS). While the H-2B program is now chiefly administered by U.S. Citizenship and Immigration Services, an agency within DHS, DOL has been delegated responsibility for certain labor-market related functions of the H-2B program.   

As a result of the rulings, the H-2B program faced uncertainty for most of March. With the regulations frozen, and perhaps out of an abundance of caution, DOL and DHS on March 5 suspended processing of all H-2B petitions. That prompted a panic of impending labor shortages in a wide range of industries and states, from fishing in Alaska to crawfish production in Louisiana and tourism in Maine. The suspension, however, was short-lived. On March 17, Judge Rodgers granted a request by DOL to lift her injunction in Perez v. Perez until April 15—a timeline since extended to May 15—in order to minimize disruption while the administration develops new regulations. In the meantime, by March 26 USCIS had received enough H-2B petitions to reach the congressionally mandated cap of 66,000 visas per fiscal year and stopped accepting new petitions. As both injunctions were based on the finding that DOL lacks authority to issue H-2B regulations, rather than on the merits of changes to the visa program, DHS has announced that it intends to jointly issue a new H-2B interim final rule with DOL by April 30; for the time being, the program remains stripped of its DOL-issued regulations. It is uncertain whether the new joint regulations will maintain the status quo by simply mirroring the 2008 regulations, or introduce substantive changes.

Trafficking and Abuse in the H-2B Program

In a parallel but equally important legal development, a federal jury in New Orleans on February 18 awarded $14 million in damages—the largest award ever in a labor trafficking case—to five Indian nationals who were brought to the United States through the H-2B program in 2006. In David et al. v. Signal International, LLC, a case that stretched many years, the jury found that Signal International LLC (a maritime construction company), a U.S.-based immigration attorney, and an India-based labor recruiter engaged in labor trafficking, fraud, racketeering, and discrimination while using the H-2B program to bring hundreds of workers to Texas and Mississippi to rebuild after Hurricanes Katrina and Rita.

In many ways, the three lawsuits address several endemic concerns about the H-2B program—and temporary worker programs more broadly. For any temporary worker program to be effective it must strike the right balance between competing and complex policy objectives. First, employers should be able to efficiently and easily access the program to fill short-term labor gaps—a significant area of concern for groups representing business interests. At the same time, temporary worker programs should assure that no qualified U.S. workers are displaced by foreign laborers and that U.S. wages are not compromised—key areas of advocacy for labor unions. Third, all workers (U.S. and foreign born) should be protected from forms of exploitation such as trafficking, wage theft, poor and unsafe working conditions, and discrimination—issues of importance to advocates for immigrants’ and workers’ rights.

In a coincidence of timing, the Government Accountability Office (GAO) issued a report on March 6 concluding that increased protections for workers are needed in the H-2B program. The report, focused on foreign labor recruitment, found that in addition to recruiting workers directly, an estimated 44 percent of H-2B employers recruit workers indirectly by contracting with third-party staffing, recruitment, or placement agencies. It found that a range of abuses can occur during indirect recruitment, such as charging prohibited fees, recruiting for a job that does not exist, and misrepresentation or lack of information about the future job. The report also found that once H-2B workers are in the country, they may experience wage abuses, inadequate living conditions, discrimination, and threats of deportation.

Both the GAO report and the legal actions by competing stakeholders in the debate indicate that the current program has failed to fully meet its goals or address its long-standing challenges.

The Future of Temporary Worker Programs

Determining the balance between employer needs and worker protections in temporary worker programs has been a central challenge in the deliberations surrounding comprehensive immigration reform legislation since 2006. Indeed, the inability to strike that balance was in part responsible for the failure of legislation in 2006 and 2007, while reaching a compromise was at the heart of negotiations between a group of bipartisan senators, national labor unions, and the U.S. Chamber of Commerce during the Senate’s process of crafting its 2013 comprehensive immigration reform bill, the Border Security, Economic Opportunity, and Immigration Modernization Act (S. 744).

A part of that carefully crafted agreement was the creation of a new “W” nonimmigrant visa program for jobs requiring less than a bachelor’s degree. The program in the Senate bill would have introduced a registration system for employers and workers, allowed for movement between employers and occupations, a path to permanent residency, and new wage requirements. W visa issuance could have been adjusted annually up to 220,000 with exceptions in certain shortage occupations, and the program would have prioritized visas for small businesses and high-demand jobs, limited visa issuance in local areas with high unemployment, and capped visas in the construction industry. It also would have raised visa fees for firms that heavily use W visas, and increased penalties for employers found to have committed certain labor violations.

While Congress ultimately failed to pass this bill, its elements will certainly inform debate on temporary worker programs when Congress inevitably resumes consideration of immigration legislation. The critical business and labor concerns have not changed: improving U.S. workers’ access to information about job opportunities, allowing employers to efficiently fill openings when qualified U.S. workers are not available, increasing workers’ labor mobility, and allowing them to move out of a temporary status. Though difficult, a compromise on these competing concerns is necessary to reforming the temporary worker system, which, as the current H-2B controversy underscores, has failed to deliver on its promises in an economy that has undergone tremendous shifts since the program’s creation in 1952.

National Policy Beat in Brief

Courts Continue to Weigh in on Deferred Action Programs. On April 7, a three-judge panel from the U.S. Court of Appeals for the 5^th Circuit unanimously upheld the dismissal of a 2012 lawsuit filed by the state of Mississippi and a group of officers from U.S. Immigration and Customs Enforcement (ICE). The lawsuit contested President Obama’s first major executive action on immigration, the 2012 Deferred Action for Childhood Arrivals program (DACA). The DACA program offers temporary protection from deportation—and work authorization—to unauthorized immigrants who entered the United States before the age of 16 and are enrolled in school. The court found that the plaintiffs lacked legal standing to sue.

In a separate case, U.S. District Judge Andrew Hanen rejected a request by the U.S. Department of Justice (DOJ) for an emergency stay of the temporary injunction he issued in February on the deferred action programs announced by the President in 2014. As long as the injunction remains in place, the Department of Homeland Security (DHS) may not move forward with implementation of the programs, which include Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) and an expansion of DACA. DAPA would extend deferred action benefits to unauthorized immigrants who are parents of a U.S. citizen or lawful permanent resident and have resided in the United States for five years or more, while the expanded DACA would extend the benefits from two to three years and lift the earlier age cap of 31 years. Judge Hanen also issued a second order finding that DOJ engaged in “misconduct” by repeatedly suggesting that the 2014 deferred action programs had not yet been implemented, when one key change had already been made: U.S. Citizenship and Immigration Services (USCIS) began issuing three-year permits under the original DACA program rather than two-year permits.

Meanwhile, on April 17, a different 5^th Circuit three-judge panel heard arguments on the Obama administration’s request to stay Judge Hanen’s injunction. The judges are expected to rule on the request shortly. Whatever the outcome, the case will most likely be appealed to the Supreme Court.

• Opinion from the U.S. Court of Appeals for the 5^th Circuit in Crane v. Johnson
• Denial of motion to stay the injunction in Texas v. U.S.
• Finding of “misconduct” in Texas v. U.S.
• Reuters article on the hearing to lift the injunction in the Fifth Circuit appellate court

Increased Arrivals of Unaccompanied Migrant Children, But Lower Levels than 2014. Unaccompanied child migrant arrivals at the U.S.-Mexico border have started increasing in recent weeks, though the number of those apprehended at the border (16,000) is down 45 percent compared to fiscal year (FY) 2014’s numbers for the same period (29,000), according to U.S. Customs and Border Protection (CBP). The overall number of unaccompanied minors arriving in FY 2015 is anticipated to be much lower than in FY 2014. However, this year is still on track to be the second largest number of arrivals on record, the Migration Policy Institute estimates. The rate of family units crossing the border is also down, about 30 percent from last year. In FY 2014, the unprecedented arrivals of 69,000 unaccompanied children and 68,000 families touched off a humanitarian and political crisis for the federal government. According to CBP, the agency is well prepared to handle the influx this year.

• CBP statistical summary on unaccompanied alien children at the Southwest border

H-1B Cap for FY 2016 Quickly Reached. On April 7, USCIS announced that within one week of opening the H-1B application period for employment beginning in FY 2016, it had received enough petitions to reach the annual statutory cap of 85,000 H-1B visas (65,000 plus 20,000 for nonimmigrants with U.S. master’s degrees). As a result, and consistent with recent practice, USCIS used a computer-generated lottery process to select which 85,000 petitions would be processed to receive the visas. This is the third year in a row that USCIS received enough H-1B petitions to reach the cap within one week of opening the application period. USCIS received nearly 233,000 H-1B petitions within the first seven days of the application period, up from 172,500 H-1B petitions for the same period last year. The H-1B visa program enables U.S. employers to sponsor high-skilled foreign nationals such as scientists, software developers, and engineers to work in the United States for a temporary period.

• USCIS news release on reaching the FY 2016 H-1B cap

EB-5 Visa Cap for Chinese Nationals Reached. For the second year in a row, the U.S. Department of State announced on April 13 that the maximum number of immigrant visas that can be issued to Chinese nationals through the EB-5 program has been reached. The EB-5 program allows foreign investors to earn an immigrant visa by investing at least $500,000 or $1 million in a new commercial enterprise (depending on the region in which it is located) and creating at least ten U.S. jobs. Under current law, the EB-5 category has a statutory cap of 10,000 visas, no more than 7 percent of which may be issued to nationals of a single country. However, Chinese nationals are eligible to receive EB-5 visas not used by nationals of other countries, and in recent years have received more than 80 percent of all EB-5 visas issued. Effective May 1, the EB-5 visa category will have a cutoff date for eligibility and Chinese EB-5 applicants may now need to wait several years between the time they file as an investor and immigrate to the United States.

• USCIS details on the EB-5 immigrant investor visa program

MAVNI Program Expanded. On March 27, the U.S. Army announced that it will expand a program offering a fast track to citizenship for lawfully present noncitizens with high-demand skills, including specialized language expertise or health-care training. The program, Military Accessions Vital to the National Interest (MAVNI), will increase to 3,000 enlistments this fiscal year (FY) and 5,000 in FY 2016, up from the current limit of 1,500. Those who enter the program can apply directly for citizenship without first being a lawful permanent resident. Last September, the Department of Defense announced that the program would be open to DACA recipients who otherwise qualify under MAVNI’s requirements. Forty-three DACA recipients had enlisted as of April 2, according to an Army spokesperson.

• The Wall Street Journal article on the MAVNI expansion

ICE Announces New Custody Procedures. On March 18, ICE announced new procedures related to its custody determinations for immigrant detainees with criminal convictions. The changes are the result of a year-long assessment conducted at the direction of Homeland Security Secretary Jeh Johnson. The assessment reviewed the criteria used by ICE officers to determine whether or not to release a person with criminal convictions. The new procedures require increased supervision over discretionary release of such immigrants and ensuring that detention capacity is not a determining factor in the decision to release them. The new procedures also direct ICE to develop a capability to provide information on the release of immigrants with criminal convictions to relevant state law enforcement authorities.

• ICE news release on enhanced oversight and release procedures for detainees with criminal convictions

Federal Judge Approves Deal on Special Immigrant Juvenile status. A federal judge in California on March 30 approved a stipulation allowing certain noncitizens to apply for Special Immigrant Juvenile (SIJ) status even after they have aged out of eligibility for the program. The court order stems from a 2010 settlement between the federal government and a class of immigrants who applied for SIJ status in 2005 but were denied, and alleged that certain DHS practices hindered their access to the program in part because they were being held in custody and thus unable to obtain state court orders necessary to be granted SIJ status. The SIJ program offers immigration relief to children who have been abused, neglected, or abandoned, and are unable to reunite with at least one parent in the United States; applicants must be younger than 21 years old at the time they apply. Under the stipulation, the federal government may not deny or revoke a class member’s application for SIJ status if the applicant was under 21 years old and unmarried when he or she applied, and if he or she was held in state custody before aging out of the program.

• Center for Human Rights and Constitutional Law Backgrounder on special immigrant juvenile case, Perez-Olano et al v. Holder et al.

Cuba to Be Taken Off List of State Sponsors of Terrorism. On April 14, President Obama informed Congress that he would remove Cuba from the U.S. State Department’s list of state sponsors of terrorism. In addition to signifying the full restoration of diplomatic ties, this move will lead to the opening of embassies in Havana and Washington, as well as further easing of U.S. immigration restrictions placed on Cuban nationals. The State Sponsors of Terrorism list consists of countries that have provided repeated support for acts of international terrorism, as determined by the Secretary of State. Visa applicants from states designated as state sponsors of terrorism require additional security checks, including mandatory consulate interviews.

• U.S. Department of State State Sponsors of Terrorism list
• The New York Times article on Cuba’s removal from the State Sponsors of Terrorism list

State and Local Policy Beat in Brief

Illinois Governor Freezes $3.4 million in Funding for Immigrant Integration. As part of ongoing efforts to keep the state funded through the June 30 end of the fiscal year, Illinois Governor Bruce Rauner suspended $26 million in social services and public health grants, and $3.4 million in funding for immigrant integration assistance. The funding cut has put hundreds of jobs at immigrant-services agencies at risk.

• Chicago Tribune article on Illinois suspension of funds