Congress and Trump discover bipartisanship on immigration—but only to increase H-2B visas for captive and underpaid migrant workers
Instead of taking action together to enact legislation that would provide a path to citizenship for the unauthorized immigrants who are in danger of losing their immigration protections and work authorization as a result of President Trump’s efforts to end Deferred Action for Childhood Arrivals (DACA) and Temporary Protected Status, Congress and the Trump administration have collaborated to increase in the size of the main temporary work visa program that U.S. employers use to fill low-wage non-agricultural jobs: the H-2B visa.
This year, employers and corporate lobbyists claimed—as they do every year—that 66,000 low-wage work visas were not enough to fulfill their demand for cheap, captive labor in the landscaping, construction, forestry, seafood, meat processing, traveling carnival, and hospitality industries. Members of Congress acquiesced to their demands by inserting language into the appropriations legislation that is now funding the government during fiscal year 2019, that gave the Department of Homeland Security (DHS) the authority to temporarily increase the annual limit of 66,000 visas by up to 63,500 additional visas. DHS ultimately decided last week to increase the H-2B annual limit by 30,000 visas, taking the total H-2B “cap” for 2019 to 96,000.
Migrant workers make important contributions to the U.S. economy, and it should go without saying that they deserve equal rights, fair pay, protections from retaliation, and a path to permanent residence and citizenship. Sadly, the H-2B program does not meet any of these standards. Instead, the H-2B program—like other U.S. temporary work visas programs—empowers employers to legally exert an unusual amount of control over migrant workers, who often arrive indebted to the labor recruiters who connect them to jobs in the United States. H-2B workers are in effect, captive, because their visa status is controlled by their employer—which means that if an H-2B worker isn’t paid the wage he or she was promised, or is forced to work in an unsafe workplace—the worker has little incentive to speak up or complain to the authorities. Complaining can result in getting fired, which leads to becoming undocumented and possibly deported. It also means not being able to earn back the money that was invested in order to get the job.
These problems, which are inherent in the H-2B program, are well-documented. There are numerous cases of litigation, media reports, government audits, and studies revealing how migrants employed through the H-2B program arrive in the United States with massive debt, are often exploited and robbed by employers, and even become victims of human trafficking. While these most-egregious examples are clear legal violations, much of the abuse and discrimination in the H-2B program is perfectly legal. First, employers control the workers’ immigration status. And second, employers have been allowed to underpay H-2B workers for years thanks to the way the H-2B wage rules work, which have included policy changes made through appropriations riders that have weakened the already-inadequate wage rules and de-funded enforcement. Since U.S. workers are forced to compete with vulnerable and underpaid H-2B workers, wages and working conditions for all workers in major H-2B occupations are degraded. As a result, there’s no question that the H-2B program needs major reforms to protect both migrant and American workers.
Table 1 below illustrates how the H-2B program allows employers to undercut U.S. wage standards. Table 1 shows the top 20 H-2B occupations in fiscal2017 by Standard Occupational Classification code, according to H-2B jobs certified by the U.S. Department of Labor (DOL), and the nationwide average hourly wage for all certified H-2B workers in each of the occupations. The 2017 average hourly wage rates for all workers in the occupation nationwide, according to the DOL’s Occupational Employment Statistics (OES) survey—which is used to set H-2B wage rates, making it an apples-to-apples comparison—is listed next to the H-2B wage. The final column shows the difference between the average hourly certified H-2B wage and the average hourly OES wage for the entire country; this is what employers save, on average, by hiring an H-2B worker instead of a worker who is paid the national average wage for the occupation.
Top 20 H-2B occupations in 2017: National average certified H-2B wage, average OES wage, and employer hourly wage savings
|H-2B rank||SOC code||Occupation||H-2B jobs certified||H-2B average hourly wage||OES national average hourly wage||Employer average hourly wage savings|
|1||37-3011||Landscaping and Groundskeeping Workers||53,938||$12.94||$14.28||$1.34|
|2||45-4011||Forest and Conservation Workers||10,918||$11.58||$15.06||$3.48|
|3||37-2012||Maids and Housekeeping Cleaners||10,064||$10.90||$11.84||$0.94|
|4||39-3091||Amusement and Recreation Attendants||7,124||$9.14||$10.94||$1.80|
|5||51-3022||Meat, Poultry, and Fish Cutters and Trimmers||7,021||$9.92||$12.71||$2.79|
|7||35-3031||Waiters and Waitresses||3,730||$11.72||$12.15||$0.43|
|9||35-3022||Counter Attendants, Cafeteria, Food Concession, and Coffee Shop||1,793||$9.60||$10.83||$1.23|
|10||39-2021||Nonfarm Animal Caretakers||1,638||$12.25||$12.10||-$0.15|
|11||53-7062||Laborers and Freight, Stock, and Material Movers, Hand||1,566||$13.17||$14.28||$1.11|
|13||45-3011||Fishers and Related Fishing Workers||1,333||$14.11||$15.00||$0.89|
|15||35-9011||Dining Room and Cafeteria Attendants and Bartender Helpers||1,217||$10.16||$11.08||$0.92|
|17||35-2021||Food Preparation Workers||1,152||$10.78||$11.49||$0.71|
|18||45-2092||Farmworkers and Laborers, Crop, Nursery, and Greenhouse||1,112||$10.86||$12.05||$1.19|
|19||53-7064||Packers and Packagers, Hand||1,057||$10.26||$12.22||$1.96|
|20||51-4121||Welders, Cutters, Solderers, and Brazers||1,041||$21.72||$20.87||-$0.85|
Note: All values are in 2017 dollars. A negative value in the employer hourly wage savings column represents an H-2B job that was, on average, certified at a higher wage rate than the corresponding OES national average hourly wage.
Source: EPI analysis of the Bureau of Labor Statistics’ Occupational Employment Statistics (2017) and of H-2B fiscal 2017 disclosure data from the Office of Foreign Labor Certification's Performance Data, available at: https://foreignlaborcert.doleta.gov/pdf/PerformanceData/2017/H-2B_Disclosure_Data_FY17.xlsx
Table 1 shows that in all but three of the top 20 H-2B occupations in fiscal 2017, the average hourly wage certified nationwide for H-2B workers was lower than the OES average hourly wage for all workers in the occupation. The biggest wage savings for employers was found in the construction laborers occupation; employers could save over $4.00 per worker per hour on average by hiring an H-2B worker instead of a worker earning the national average for the occupation. If for example, an employer hired an H-2B construction worker to work for 40 hours per week for nine months (approximately 36 weeks) at $4.00 per hour less than the average wage, the employer would save—and an H-2B worker would be underpaid by—$5,760.
In the top two occupations of landscaping and groundskeeping workers and forest and conservation workers—which accounted for nearly half (48 percent) of all H-2B certifications in 2017—the average hourly savings for employers were $1.34 and $3.48, respectively. Employers in the seafood industry, who every year are the loudest voices calling for an increase in the H-2B cap, saved $2.79 per worker per hour on average by hiring an H-2B worker under the meat, poultry, and fish cutters and trimmers occupation. (I’ve explained before how seafood employers also use private wage surveys to lower H-2B wage rates so they can vastly underpay their H-2B employees.)
While H-2B wages are set at the local level according to each job, it makes sense to look at the impact of the H-2B program on the average wages of H-2B occupations at the national level, because the H-2B statute sets a national standard for the protection of U.S. labor standards. The H-2B statute clearly states that H-2B workers can only be hired “if unemployed persons capable of performing such service or labor cannot be found in this country.” In order to determine whether there are “unemployed persons” in the United States capable of doing a job before an employer can hire an H-2B worker, employers should be required to offer at least the national or local average wage for the occupation (whichever is higher), recruit U.S. workers nationwide, and offer to pay for housing and transportation for both U.S. and H-2B workers. Under the current H-2B recruitment and wage regulations, that’s not the case, and Table 1 clearly shows the result: employers are undercutting U.S. wage standards.
The Democrats and Republicans in Congress who supported the appropriations language to expand H-2B wanted the number of H-2B visas to be much higher than 30,000, but did not want the accountability that comes with passing legislation through the regular committees of jurisdiction. Instead, they made a major change to U.S. immigration law, but in a way that avoids accountability: through a fly-by-night provision on a must-pass spending bill that has no identifiable author and without a full debate in Congress, where members would be accountable for their votes. They also failed to specify the level of increase they wanted for the H-2B program—passing the buck instead to the Trump administration by directing DHS to determine how many additional H-2B workers were appropriate—something DHS has objected to more than once.
The Democrats and Republicans who support an H-2B increase ultimately came together to ask for what they really wanted: a doubling of the H-2B program. Many signed a letter dated March 7, calling on DHS Secretary Kirstjen Nielsen to “use [her] authority to increase the number of H-2B visas to 135,320, the number available in FY 2007 when the Returning Worker Exemption was in force.” (The members of Congress got their numbers wrong; the number of visas issued in 2007 was was 129,547, as this report from the Congressional Research Service shows.) Secretary Nielsen and President Trump had the legal authority to reject Congress’s request and could have simply said “no” to expanding the H-2B program again, but they didn’t.
It’s important to point out Trump’s glaring contradiction here: He’s taken extreme actions to expel immigrants from the United States or keep them out, including by building a border wall and making it more difficult to request asylum, but doesn’t seem to mind letting migrants enter the country if they’re coming for the explicit purpose of being taken advantage of by employers. Trump himself has first-hand experience with exploitable migrant workers: his companies have long employed both H-2B workers and undocumented workers. As the New York Times and Washington Post have reported, Trump’s companies have bypassed the local workforce, sometimes requiring them to “apply by fax,” because they prefer to hire H-2B workers. Trump’s golf courses have also retaliated against their undocumented employees by firing them after they spoke out about Trump’s hypocrisy.
It’s unfortunate that Democratic and Republican members of Congress and President Trump could not come together to reform the H-2B program in a positive way that uplifts labor standards and provides migrant workers with a decent opportunity to be paid fairly, have a path to citizenship, and ultimately, improve their lives. Instead, they decided that that what America really needs are more underpaid workers who employers can exploit.