USCIS Should Increase the H-2 Status Limit to 6 Years

Summary: U.S. Citizenship and Immigration Services (USCIS) should increase the three‐​year limit on H-2B and H-2A extensions of status to six years. The H-2A and H-2B programs admit foreign workers who are “coming temporarily” to perform temporary agricultural or nonagricultural labor or services in the United States. [1] By statute, all H-2 jobs must be “temporary” defined through regulation as generally lasting less than a year or, in the case of a one‐​time need, less than 3 years. Independent of this restriction on the length of the job, USCIS regulations also limit H-2A and H-2B workers to a maximum period of 3 continuous years in the United States without a continuous period of 90 days abroad. [2] This regulation imposes unnecessary burdens on the agencies, employers, and workers. Agencies must vet and process a new group of workers to replace those who are subject to the 3‐​year limit, creating new burdens and exposing the country to avoidable security risks. Workers who are nearing the end of their stay cannot change employers, giving those employers’ excessive leverage in wages and working conditions and undermining the most efficient allocation of labor. Since every H-2 job must first be certified by DOL as unfilled by U.S. workers, the domestic workforce sees no benefit. Meanwhile, employers face the prospect of pointless turnover if their employees are required to leave in the middle of a job. They may also be blocked from rehiring trusted returning workers who are already trained on their operations, creating preventable inefficiencies. The requirement also exacerbates the shortage of H-2B workers because H-2B hires who are already in the United States are exempt from the H-2B cap, which employers have reached every year since 2014. In 2008, USCIS finalized rules that reduced the required time abroad from 6 months to 3 months. [3] In those rules, USCIS directly recognized the burden that 3‐​year limit causes and agreed that the shorter period “would allow a worker to engage in a longer employment period, which would benefit both employers and employees.” DHS stated that “this streamlining measure will encourage employers who are unable to secure their workforce among U.S. workers to use the H-2A program instead of hiring individuals who have no legal immigration status and are unauthorized to work.” But in 2008, USCIS did not address the 3‐​year limit. The 3‐​year limit originally appears to date to a 1964 INS rulemaking governing H-2A’s and H-2B’s predecessor, the H-2 program, but that rule provided no justification. [4] INS’s 1987 H-2A rulemaking states that the 3‐​year limit is based on the grounds that allowing an H-2 worker to “remain indefinitely” would cause the worker to “at some point … no longer qualify as a nonimmigrant.” [5] Yet this opinion was based on the law as it existed prior to the Immigration Act of 1990 in which Congress created new nonimmigrant classifications, such as the O and P categories which still have no limit on extensions of status. [6] Additionally, Congress defined what it considered “coming temporarily” for the purpose of the other major H visa program—the H-1B program—as up to 6 years. [7] Thus, there is a statutory ground for saying that “coming temporarily” under the H-2 programs also means up to 6 years. Moreover, during the COVID-19 emergency, USCIS granted H-2 workers in industries critical to the food supply extensions beyond the 3‐​year limit. [8] This indicates the agency does not believe that the 3‐​year limit is binding under the statute. As a practical matter, most H-2 workers cannot continue to extend indefinitely. In 2015, DHS assumed that 50 percent of H-2B workers received extensions for at least a year and 25 percent for three years. [9] But one in four workers is still a very substantial portion of the H-2 workforce. After 6 years, however, the share of affected workers would be much less. Assuming a similar annual decline in extensions, just 3 percent would hit the full 6‐​year limit. Nonetheless, easing the limit would have a substantive cumulative effect on the availability of H-2B workers, reduce burdens for the agency and employers, and improve the bargaining power of workers. For these reasons, USCIS should replace the 3‐​year limit on H-2 status with a 6‐​year limit. [1] 8 U.S.C. 1101(a)(15)(H)(ii) (2018).