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Immigration Issue Centers : Labor and Ecnomics

The Mikuski End-Run to the Limit on Temporary Unskilled Foreign Workers (H-2B Visas)

Sen. Barbara Mikulski (D-MD) managed to open a large loophole in the limit on foreign temporary unskilled workers in the last Congress that was otherwise deadlocked on immigration reform issues. In theory, the Mikulski exemption is temporary. However, it has already been renewed once, and it has the appearance of becoming a permanent fixture if not effectively opposed by those who see the H-2B visa program as a means to give American jobs to foreign workers to the detriment of American workers.

BACKGROUND

The H-2B visa program is established in law with an annual ceiling of 66,000 visas. It allows employers to sponsor foreign workers who have no special educational or work related qualification that would establish eligibility for one of the other temporary worker visas. The U.S. Commission on Immigration Reform, after studying the operation of temporary worker provisions recommended the elimination entirely of the H-2B visa program.

“The Commission recommends the elimination of the admission of unskilled workers. Unless there is another compelling interest, such as in the entry of nuclear families and refugees, it is not in the national interest to admit unskilled workers. This is especially true when the U.S. economy is showing difficulty in absorbing disadvantaged workers and when efforts towards welfare reform indicate that many unskilled Americans will be entering the labor force.” 1  

Unfortunately, Congress has never acted on the Commission’s recommendations for legal immigration reform. Nothing has changed with regard to the economy or the labor market that reduce the validity of the Commission’ recommendation that these visas be abolished.

 MIKUSKI END-RUN 

On behalf of business interests in Maryland, Sen. Mikulski introduced in 2005 legislation that allowed employers to rehire outside the H-2B visa limit any foreign worker who had obtained a visa during the previous three years.2 In the House of Representatives, this effort to expand the H-2B visa program has been led by Rep. Wayne Gilchrist (D-MD). In implementing this exemption provision, DHS examined the files of temporary workers who had received visas that year and found that tens of thousands had received visas the in one of the previous three years and, therefore, reopened the H-2B visa issuances to allow additional foreign workers to be hired.

That meant having in theory up to three-years-worth of workers under the 66,000 ceiling (198,000) workers eligible to return outside the ceiling. In practice, many of the H-1B workers who were already approved for fiscal year 2005 had worked the previous year or several of the previous years, and this overlapping of visa issuance to the same individual reduced the effective number of additional workers allowed in that first year of the exemption. The result was that DHS reported the entry of 122,316 H-1B visa holders in 2005. 3 This was an increase from 86,958 entries in fiscal year 2004 a 41 percent increase.

The Mikulski ploy on behalf of business interests was not, however, limited to just a one-time limited exemption. She then pushed for a permanent increase as part of the Senate’s broad immigration legislation. That legislation, had it been enacted, would have built in a continuing annual ratcheting up of the number of foreign unskilled temporary workers.

When the Senate and House deadlocked on immigration legislation toward the end of the legislative session, Sen. Mikulski again turned to non-germane, must-pass legislation to slip by a one-year extension of the exemption provision for H-2B visas into the law. 4

Under this repeated Mikulski ploy, the H-2B visa program, rather than being abolished as recommended by the Jordan Commission, 5 has been prolonged in providing a de facto automatic annual increase in the visa ceiling.

Each time the exemption to the H-2B visa ceiling is renewed it offers the prospect of an ever increasing number of foreign temporary unskilled workers getting U.S. jobs. The reason is that employers know that they can hire new workers each year as well as reemploying foreign workers whom they hired in one of the previous three years. In theory, there could be 66,000 new workers admitted along with 198,000 workers who gained new H-2B visas in one of the previous three years along with after the provision had been operating for more than three years - additional hundreds of thousands of workers who had been reissued H-1B visas in previous years under the exemption. Over time, the exemption could snowball into the admission of millions of temporary unskilled foreign workers taking American jobs.

Sen. Mikulski justified this increase by citing employers in Maryland’s Eastern Shore seafood industry who asserted that they were unable to find American workers willing to work processing oysters and crabs for the market. Yet these same jobs traditionally had been done by black Marylanders who were supplanted by foreign workers, largely Latinos from Mexico and Central America.  

It is natural to wonder why Sen. Mikulski and Rep. Gilchrist would be working to increase the number of foreign workers able to take manual labor jobs in their state when Baltimore has been experiencing significant job losses. The industries most affected between 1999 and 2005 have been low-skilled job opportunities in the retail and manufacturing sectors.6 It would seem reasonable that public officials representing the state focus not only on the interests of employers but also on the needs of native unemployed Marylanders. Baltimore today has a large number of young people ages 16-24 who have dropped out of school and are considered “disconnected” because they are unemployed.

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