H-2B Visas: Additional Steps Needed to Meet Employers' Hiring Needs and Protect U.S. Workers

GAO-20-230 Published: Apr 01, 2020. Publicly Released: Apr 01, 2020.
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Fast Facts

H-2B visas are intended to help employers fill certain jobs (i.e. landscaping, seafood processing) when no U.S. workers are available. The number of visas is capped and they're generally first come, first served.

Employers told us uncertainty over whether the visa process will provide enough workers hampers their operations, including their ability to plan expansions.

The Homeland Security and Labor Departments have identified possible ways to reduce visa uncertainty, but haven’t determined what can be done under current law.

Our 5 recommendations include evaluating the options and proposing any needed legislative changes to Congress.

A company that employs people using H-2B visas processed this basket of blue crabs in Maryland.

Crabs in a basket

Crabs in a basket

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Highlights

What GAO Found

Employer demand for H-2B visa workers has increased as the national unemployment rate has declined. H-2B visas are intended to help employers fill temporary, non-agricultural positions when no U.S. workers are available and are subject to an annual statutory cap of 66,000. From 2010 to 2018, the number of H-2B workers requested on employer applications increased from about 86,600 to 147,600. Regarding local economic conditions, GAO found that counties with H-2B employers generally had lower unemployment rates and higher weekly wages than those without H-2B employers.

Most of the 35 H-2B employers GAO interviewed said that business planning was affected by uncertainty about whether they would be able to hire the number of H-2B visa workers they requested given the statutory cap. Employers who did not receive all H-2B visas requested under the statutory cap in 2018 were somewhat more likely than those who did to report declines in revenue (see figure) and purchases of goods and services. However, GAO found no clear pattern in changes to the number of U.S. workers hired by these employers. Employers interviewed by GAO varied in how they adjusted to having fewer H-2B workers. For example, two seafood employers reported shutting down operations in the absence of H-2B workers, and employers said that barriers to finding U.S. workers included remote location and seasonality of the work.

Reported Revenue Changes from Previous Year for H-2B Employers, Fiscal Year 2018

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Federal agencies have identified program changes that consider employers' hiring needs and protect U.S. workers, but gaps remain in implementation. The Department of Homeland Security (DHS), in consultation with the Department of Labor (DOL), has identified options for changing the H-2B visa allocation process to address employers' uncertainty aboutreceiving visas. However, DHS and DOL have not assessed any of these options or determined which would not require Congressional action, and employers continue to struggle with uncertainty. To help ensure H-2B employers comply with U.S. worker recruitment and other requirements, DOL has audited employers' compliance with these requirements. However, in general, DOL randomly selected employers for these audits, rather than taking a risk-based approach using factors such as violation trends by industry. As a result, the agency may not be using its limited audit resources efficiently or effectively.

Why GAO Did This Study

Since 1990, there has been an annual statutory cap of 66,000 on the number of H-2B visa holders who can work for U.S. employers. DHS administers the program with support from other federal agencies including DOL. In recent years, demand for H-2B visas has exceeded the cap. To meet the needs of U.S. businesses, Congress authorized additional visas in fiscal years 2017-2019. GAO was asked to examine the effects of the annual cap on employers and U.S. workers.

This report examines, among other objectives: (1) trends in the demand for H-2B visa workers, (2) selected employers' reports of the visa cap's influence on their performance and employment of U.S. workers, and (3) how federal agencies have sought to meet employers' H-2B hiring needs and protect U.S. workers. GAO analyzed nationwide data on H-2B visas and county labor market indicators. GAO interviewed 35 H-2B employers in four industries that are among the largest users of H-2B visas. The employers were in five counties selected for variation in factors including the share of H-2B workers in the workforce and the unemployment rate. GAO also reviewed relevant federal laws, regulations, and documents and interviewed federal officials and stakeholders.

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Recommendations

GAO is making five recommendations. These include that DHS and DOL assess options to adjust the H-2B visa program and DOL take a risk-based approach to selecting H-2B employers for audits. The agencies agreed with these recommendations as well as one other. DHS disagreed with one, which GAO continues to believe is warranted.

Recommendations for Executive Action

Agency Affected Recommendation Status
United States Citizenship and Immigration Services The Director of United States Citizenship and Immigration Services should work with the Assistant Secretary for the Employment and Training Administration to assess options for changing the H-2B visa program and, as warranted, implement changes or submit proposed legislative changes to Congress. DHS and DOL could consider options included in their June 2019 report to Congress and identify those that may be implemented cost effectively and without adversely affecting U.S. workers. (Recommendation 1)
Closed – Implemented
DHS agreed with this recommendation and noted that it planned to work further with DOL to explore options for improving the H-2B visa program and possibly develop proposals for legislative changes. On January 20, 2022, DHS delivered a briefing to Congress that addressed the H-2B program--Options for Improving the H-2A and H-2B Visa Programs-as required by the Joint Explanatory Statement that accompanied the FY 2020 DHS Further Consolidated Appropriations Act (P.L. 116-94). DHS said this briefing was developed in consultation with DOL. The briefing slides discuss options for changing how executive branch agencies administer the H-2B program and for changing the program's authorizing statute. For example, the briefing discusses statutory changes that the agencies believe could make the H-2B numerical cap more effective.
Employment and Training Administration The Assistant Secretary for the Employment and Training Administration should work with the Director of United States Citizenship and Immigration Services to assess options for changing the H-2B visa program and, as warranted, implement changes or submit proposed legislative changes to Congress. DOL and DHS could consider options included in their June 2019 report to Congress and identify those that may be implemented cost effectively and without adversely affecting U.S. workers. (Recommendation 2)
Closed – Implemented
DOL agreed with this recommendation and noted that it was prepared to work with DHS to consider options for changing the H-2B program and provide any technical assistance that Congress may need on this issue. On January 20, 2022, DHS delivered a briefing to Congress that addressed the H-2B program--Options for Improving the H-2A and H-2B Visa Programs-as required by the Joint Explanatory Statement that accompanied the FY 2020 DHS Further Consolidated Appropriations Act (P.L. 116-94). DHS said this briefing was developed in consultation with DOL. The briefing slides discuss options for changing how executive branch agencies administer the H-2B program and for changing the program's authorizing statute. For example, the briefing discusses statutory changes that the agencies believe could make the H-2B numerical cap more effective
United States Citizenship and Immigration Services The Director of United States Citizenship and Immigration Services should work with the Assistant Secretary for the Employment and Training Administration to assess the advantages and disadvantages of considering current economic trends in determining the appropriate number of additional H-2B visas to provide when given this authority by Congress and, as warranted, implement an approach that considers such trends. (Recommendation 3)
Open
DHS did not agree with this recommendation. DHS said it would continue to work with DOL-as it has done in prior years--if and when Congress delegates the authority to make additional H-2B visas available beyond the statutory cap to DHS. The agency also expressed its view that Congress is better positioned to determine whether and how many additional visas should be made available to meet the needs of U.S. businesses. In July 2022, DHS reiterated that it disagrees with this recommendation and does not plan to take steps to implement it. However, GAO continues to believe that it would be appropriate for DHS, in consultation with DOL, to assess the advantages and disadvantages of considering current economic trends in determining the appropriate number of additional H-2B visas to provide. Moreover, if DHS believes that Congress is best suited to determine what increases in visa numbers may be needed to meet the needs of U.S. businesses, consistent with protecting American workers, it may wish to work with Congress to draft a legislative proposal reflecting this view.
Employment and Training Administration The Assistant Secretary for the Employment and Training Administration should work with the Director of United States Citizenship and Immigration Services to assess the advantages and disadvantages of considering current economic trends in determining the appropriate number of additional H-2B visas to provide when given this authority by Congress and, as warranted, implement an approach that considers such trends. (Recommendation 4)
Closed – Implemented
DOL agreed with this recommendation and noted plans to draw on its data on labor market and economic trends to provide technical assistance to DHS on the determination of how many additional H-2B visas to make available. In June 2021, DOL noted that Section 105 of the Consolidated Appropriations Act of 2021 authorized DHS, after consulting with DOL, and upon the determination that the needs of American businesses cannot be satisfied with U.S. workers who are willing, qualified, and able to perform temporary nonagricultural labor, to provide supplemental H-2B visas for FY 2021. DHS and DOL collaborated to take action to ensure that American businesses are equipped with the resources needed to recover successfully and contribute to the economic health of local communities. During an engagement convened by DHS, American businesses further expressed an immediate need for supplemental, temporary guest workers. Businesses report critical vacancies, despite attempts at recruitment and hiring of U.S. workers. Accordingly, in April 2021, DHS announced a supplemental increase of 22,000 visas for the H-2B Temporary Non-Agricultural Worker program. The additional visas were made available via a temporary final rule, published in the Federal Register on May 25, 2021. The rule outlines the factors, including relevant economic and labor market data, which justify the additional number of H-2B visas.
Employment and Training Administration The Assistant Secretary for the Employment and Training Administration should take steps to target its audits of H-2B employers to employers with the highest likelihood of violating program requirements; such steps could include moving ahead with developing a system for identifying trends in H-2B employer audit outcomes. (Recommendation 5)
Open
DOL agreed with this recommendation. DOL initially noted that while further development of a system for tracking industry and occupational trends in H-2B employer violations is on hold due to budgetary constraints, when this system is available it will provide the capacity to take a risk-based approach to selecting employers for audits. In FY2021, ETA began developing the new audit module within its Foreign Labor Application Gateway (FLAG) system. When complete, the new FLAG module is expected to more accurately track individual violations found in audits, as well as the industry and occupational classifications associated with each employer subject to audit. As of June 2021, ETA is working with the Department's Office of the Chief Information Officer and a contractor to complete the business requirements and plans to complete system development by December 2021. In the interim, pending completion of the audit module in FLAG, ETA also designed and implemented a risk-based approach to selecting employers for audit. Although not as robust as the FLAG audit module, it is an important step toward targeting OFLC's post-certification audits towards employers with the highest likelihood of violating program requirements. In order to close this recommendation as implemented, we will need further documentation describing DOL's new risk-based approach to selecting employers for audits and the agency's implementation of this new approach.

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