As everyone has heard, the conventional wisdom is that the Trump administration is anti-immigrant and wants to keep foreigners out. Although this seems generally true across the board—as shown by such activities as massive immigration enforcement; efforts to block asylum claims and increase detentions, deportations, visa denials, and requests for evidence; and funding the “wall” along the southern border with Mexico, along with presidential tweets—there is an exception. President Trump has called for a “big, beautiful door” for “good people” to return to the United States and for foreign workers to provide much-needed short-term farm and seasonal labor, especially in occupational fields and geographical areas in which Americans do not seem to want to work in large numbers.
Let’s take a brief look at several of the administration’s steps in this direction:
Proposed Update to H-2A Regulations
In July 2019, the Department of Labor (DOL) proposed to update its H-2A regulations for temporary agricultural workers ” to ensure that employers can access legal agricultural labor, without undue cost or administrative burden, while maintaining the program’s strong protections for the U.S. workforce.” Among the proposals was mandating e-filing to reduce costs and burdens for most employers and for DOL. The agency said this would permit more prompt adjudication of applications, allow automatic notification when an application is incomplete or inaccurate; and reduce paperwork delays and mailing costs. Based on FY 2019 data, DOL said that approximately 94.1 percent of H-2A applications are filed electronically. Almost all of the remaining 5.9 percent of H-2A applications filed by mail also disclosed valid email addresses on the application form, thereby suggesting that employers and, if applicable, their authorized attorneys and agents have access to the Internet and are likely capable of filing electronically. The proposal allows a paper-based process for employers who are unable to e-file, along with accommodations for individuals with disabilities to access forms and communications from DOL.
DOL also proposed to allow the staggered entry of H-2A workers into the United States. Under this proposal, any employer that receives a temporary agricultural labor certification and an approved H-2A petition may bring nonimmigrant workers into the United States at any time up to 120 days after the first date of need identified on the certified Application for Temporary Employment Certification without filing another H-2A petition. If an employer chooses to stagger the entry of its workers, it must continue to accept referrals of U.S. workers and hire those who are qualified and eligible through the period of staggering or the first 30 days after the first date of need identified on the certified Application for Temporary Employment Certification, whichever is longer. DOL said this proposal “will provide employers with the flexibility to accommodate changing weather and production conditions that are inherent to agricultural work. It will also reduce the need for employers to file multiple Applications for Temporary Employment Certification for [the] same occupational classification in which the only difference is the expected start date of work.”
H-2B Visas Nearly Doubled
The Departments of Homeland Security and Labor dramatically increased the number of H-2B visas available for the summer of 2019 to allow more temporary nonagricultural guest workers into the United States, adding 30,000 for returning workers to the 33,000 planned for employers such as hotels, fisheries, loggers, and oyster-shucking companies, including Trump properties. Data show that approximately 80 percent of such visas go to Mexicans and Central Americans, which is striking in light of other efforts to block immigration from those countries.
While other doors are slamming shut, at least this door has opened.
- S. Citizenship and Immigration Services (USCIS) details on H-2A (temporary agricultural), H-2B (temporary nonagricultural), and H-3 (training/special education exchange visitor training)
- USCIS application information and forms
- USCIS nonimmigrant visa statistics
- H-2A proposed rule
- DHS/DOL H-2B rule
- USCIS H-2B increase announcement with links to forms
- News reports, https://www.nytimes.com/2018/01/18/us/politics/trump-border-wall-immigration.html, https://talkingpointsmemo.com/livewire/donald-trump-mexico-wall-good-people; https://time.com/4092571/republican-debate-immigration/; https://bit.ly/2YBsGXc; https://bit.ly/2YBsGXc