SCOOP: Biden Administration Plans to Circumvent the Law and Unilaterally Make Low-Skilled Guest Workers Permanent

According to sources and as reported by Fox News, FAIR has learned that the Department of Homeland Security (DHS) will propose to amend regulations affecting temporary agricultural and nonagricultural guest workers in the H-2A and H-2B programs.

The Biden administration is preparing a draft rule with several provisions “to increase flexibility” of guest workers. While the proposed rule will be portrayed as “enhancing protection for workers,” it does so at the detriment of American workers, especially in light of today’s economic uncertainty.

The H-2A and H-2B programs both allow U.S. employers to bring in foreign nationals to work on a temporary basis. The H-2A program is an uncapped visa program that permits employers to hire foreign workers on a temporary basis to perform agricultural labor or services. The H-2B program allows U.S. employers to import up to 66,000 foreign workers to perform low-skilled nonagricultural services, mainly in landscaping, forestry, and hospitality roles. Since 2017, Congress has included provisions in spending bills that grant the Secretary of Homeland Security discretionary authority to increase the H-2B cap beyond 66,000.

Importantly, the statute creating both H-2A and H-2B guest worker categories is clear that these workers must be temporary in nature. In addition, the statute is clear that foreign workers participating in the H-2A or H-2B programs must return to their home countries after performing their work. Indeed, to qualify for an H-2A or an H-2B visa, the alien must have “no intention of abandoning” his foreign residence and, during the visa application process, has the burden of proof to show that his intention is to return home.

The rule that the Biden Administration is now drafting will alter these programs in critical ways.

First, the draft rule would allow foreign workers to “take steps toward becoming permanent residents of the United States without being deemed to have abandoned their nonimmigrant intent or their foreign residence solely on that basis.” This creates a contradiction with federal law. Congress has provided that workers will not qualify for H-2A and H-2B workers if they intend to stay, yet this proposed rule aims to allow them to work in the United States on a temporary basis and seek immigrant status at the same time. In short, this proposed regulatory change allowing “dual intent” would effectively make temporary workers permanent, allowing them to remain in the country to work for years while they wait for a green card.

Second, the rule will extend grace periods for departure. Current regulations permit an alien to be admitted for a short period before work commences, and a short period after the expiration of the H-2A petition for the purpose of departure or to seek an extension based on a subsequent offer of employment. At this point, it is unclear how long the Biden Administration will allow aliens to stay after their authorized work has concluded.

Finally, the proposed rule will allow all H-2A and H-2B workers “to begin work immediately upon USCIS receipt of a properly filed petition.” This change will allow foreign workers to remain working immediately after a petition is filed on their behalf, even if they are not eligible or denied in the end.

Proponents of this provision may point to temporary final rules first issued in 2020 under the Trump administration that were intended to preserve continued employment under the H-2A and H-2B programs during the early days of the COVID-19 pandemic in order to protect food security and the supply chain. These rules allowed, respectively, H-2A workers to begin work immediately with a new employer after their extension petitions were received by USCIS and also allowed H-2B workers to begin work in jobs essential to the U.S. food supply chain after USCIS received their H-2B petitions. What is crucial to understanding these orders, however, is that the United States was facing significant travel restrictions, visa processing limitations, and worker shortages due to COVID-19.

That situation no longer exists and should not be used as an excuse for further abuse of the H-2 temporary worker programs. As noted by FAIR in a recent post, new data from the Bureau of Labor Statistics (BLS) reveals that real wage growth for American workers grew at an anemic 1 percent in the fourth quarter of 2022, well below the overall rate of inflation. Moreover, this negligible wage growth occurred amid an alleged worker shortage in the U.S. that has business lobbyists screaming for access to still more foreign workers.

Dual intent visas allow holders to work or live in the U.S. on a nonimmigrant visa that requires an intention to return home and, at the same time, apply for a green card. As an example, the Immigration Act of 1990 installed the H-1B visa as dual intent, leading to an avalanche of green card applications by H-1B visa holders and morphing the program into a de facto permanent immigration stream. The drive by foreign nationals to get an H-1B visa – precisely because it can lead to permanent residence – has encouraged the unscrupulous outsourcing practices that have further reinforced employers’ dependency on cheap, foreign labor.

There are a handful of visas that are dual intent.  Many, if not most, other visa categories for visitors and workers require the alien to return home.  Converting the H-2A and H-2B to dual intent, therefore, represents a substantial policy change with severe, long-lasting repercussions. The change would create a potential pathway to citizenship for every foreign agriculture and low-skilled worker who is admitted to the U.S.—just as it has done for H-1B workers. Once the foreign worker is in the U.S., the game becomes how long can you extend your initial visa, whether you can find a new employer to sponsor a new nonimmigrant visa, and how can you find a sponsor for a green card.

Various special interests have been lobbying the Biden Administration to expand the number of dual intent visas for some time. This is probably because failure to establish nonimmigrant intent (the intent to return home) is one of the most common reasons for visa denials.  Some have even argued that all visas should be dual intent.

President Biden’s first immigration bill, the U.S. Citizenship Act of 2021, proposed converting L (intracompany transfer), O (extraordinary ability), and F (student) visas to dual intent. The latter change alone would allow hundreds of thousands of foreign students (from friendly and not-so-friendly countries) to apply for green cards and eventually citizenship. In January 2022, the Biden Administration updated its guidance for consulate officers examining student visa applications late last year. Officers now only need to look at a potential student’s intent to not immigrate to the U.S. when they apply for a visa, rather than whether those plans are likely to change upon graduation.

In addition to making the program more open, the Biden administration has taken every opportunity to import more foreign labor into the U.S. – a practice that dates back to the Trump administration, but on a smaller scale. Last October, the Biden administration announced it would increase the H-2B cap and provide an additional 65,000 visas for employers with seasonal or non-agricultural needs – the highest discretionary increase dating back to 2017.

The path forward here is clear: the Biden administration must reconsider the proposed H-2 rule and instead help American workers who are struggling to compete with cheap foreign labor.