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

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.

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.

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.

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.

H-2B nonimmigrant visas are intended to help employers fill temporary,  non-agricultural positions when no qualified U.S. workers capable of  performing the work are available in the United States. Employers have  used the visas to bring foreign nationals into the United States for jobs in  fields as diverse as landscaping and seafood processing. As part of the  H-2B visa application process, the Department of Labor (DOL) screens  employers’ applications for temporary labor certification (TLC) to  determine whether there are sufficient U.S. workers who are qualified and  available to perform the temporary services or labor for which the  employer seeks to hire foreign workers, and whether hiring foreign  workers will adversely affect the wages and working conditions of  similarly employed U.S. workers. For TLCs approved by DOL, the  Department of Homeland Security (DHS) processes employers’ petitions  to hire a specific number of foreign workers.

In recent years, rising demand for H-2B visas has exceeded the statutory  cap of 66,000 visas annually provided to employers, which was  established in 1990. In each of the last three fiscal years (2017, 2018,  and 2019), DHS has been authorized to make additional H-2B visas  available. Nonetheless, business groups and some members of  Congress have raised questions about whether employers whose visa  petitions are rejected due to the cap may suffer financial consequences.  Further, it is possible that demand for visas will continue to grow,  especially as the U.S. labor force is expected to grow at an annual rate of  0.5 percent over the next several years—a lower rate than in previous  decades. Meanwhile, different perspectives have emerged concerning  the possible impact of the H-2B visa program on U.S. workers. For  example, one view is that each H-2B worker supports multiple jobs for  U.S. workers, potentially because employers use H-2Bs for hard-to-fill  jobs that are critical for business expansion. In contrast, another  perspective is that little evidence of widespread labor shortages in the  occupations that most commonly employ H-2B workers, and that  employers may be able to fill jobs with U.S. workers if they broaden their  search efforts or offer better wages.

You asked us to examine the effects of the H-2B visa statutory cap on  employers and U.S. workers. This report (1) describes trends in the  demand for H-2B workers, (2) describes selected employers’ reports of  how the visa cap has influenced their economic performance and  employment of U.S. workers, (3) summarizes proposals for adjusting the  H-2B statutory cap or how visas are allocated, and (4) assesses how the  federal agencies that administer H-2B visas sought to meet employers’ H- 2B hiring needs and protect U.S. workers.

To address our first objective, we analyzed DOL data on TLC  applications, DHS data on H-2B petitions, and Bureau of Labor Statistics  (BLS) data on unemployment and wages. We examined trends from fiscal  years 2010 to 2018 or fewer years, depending on data availability. We  assessed the reliability of the data through review of documentation,  interviews, and electronic testing, and found the relevant data fields to be  sufficiently reliable for our reporting purposes. To address our second  objective, we conducted case studies of four industries in specific  counties: construction in Maricopa County, Arizona; hospitality in  Mackinac County, Michigan (hotels), and Barnstable County,  Massachusetts (restaurants); landscaping in Dallas County, Texas; and  seafood processing in Dorchester County, Maryland. We selected  industries that were among those that applied, and were approved, for the  most H-2B visas in fiscal year 2018, and selected counties representing  variation in factors including the number of H-2B workers in the specific  industry, the proportion of H-2B workers to the county labor force, and  county unemployment rate. Across all case studies, we interviewed 35  H-2B employers who either did or did not receive visas in fiscal year  2018, who we identified with the help of industry groups; representatives  of 12 companies that supply the businesses of H-2B employers; and  officials in four state workforce agencies. The results of these interviews  are not generalizable to the overall populations of employers and state  agencies. We also distributed questionnaires to the 35 H-2B employers  and received responses from 30. To address our third objective, we  identified proposals for changing the H-2B program from interviews with  knowledgeable stakeholders and publications by these stakeholders. We  held two discussion groups and two interviews with 12 knowledgeable  stakeholders representing diverse perspectives to obtain their views on  the potential effects of each proposal we identified. To address our  fourth objective, we reviewed relevant federal laws, regulations, and other  documents related to DHS’s and DOL’s administration of the H-2B  program; reviewed agency administrative data that we determined were  sufficiently reliable for our reporting purposes; and interviewed federal  officials. We assessed the agencies’ actions according to standards for  internal controls in the federal government related to identifying and  responding to risk and change. See appendix I for more details on our  objectives, scope, and methodology.

We conducted this performance audit from September 2018 to April 2020  in accordance with generally accepted government auditing standards.  Those standards require that we plan and perform the audit to obtain  sufficient, appropriate evidence to provide a reasonable basis for our  findings and conclusions based on our audit objectives. We believe that  the evidence obtained provides a reasonable basis for our findings and  conclusions based on our audit objectives.

The Immigration and Nationality Act (INA) of 1952, as amended by the  Immigration Reform and Control Act of 1986, authorizes the  establishment of the H-2B visa category which allows U.S. employers to  bring non-immigrant workers into the United States to perform temporary  non-agricultural work. Generally, U.S. employers may apply for H-2B  visas when they can establish that (1) their need for an H-2B worker’s  labor is temporary, meaning a one-time occurrence, a seasonal need, a  peak load need, or an intermittent need; (2) qualified U.S. workers are  unavailable to perform the work; and (3) the employment of an H-2B  worker will not adversely affect the wages or working conditions of  similarly-employed U.S. workers. Generally, an H-2B worker’s  authorized stay per the TLC will be no more than 10 months. However,  DHS may authorize an extension of up to one year to H-2B workers  already in the United States, based on a subsequent TLC, with a  maximum stay of up to three years.

Pursuant to the INA, as amended by the Immigration Act of 1990, the H- 2B visa program is subject to an annual cap of 66,000 visas. These  visas are divided into two semiannual allocations: up to 33,000 workers  may be issued H-2B visas or provided H-2B nonimmigrant status in the  first half of the fiscal year(October 1 – March 31),  and the remaining  annual allocation will be available in the second half of the fiscal year  (April 1 – September 30). In fiscal years 2005, 2006, 2007, and 2016,  Congress amended the INA to include a provision that established a  returning worker exemption. This exemption enabled H-2B workers who  were counted against the visa cap during one of the three preceding fiscal  years to not be counted against the visa cap for the relevant fiscal year.

H-2B Program Screening and Approval Process

Federal agencies use a multi-step process to screen employers to ensure  eligibility to hire H-2B workers and later screen nonimmigrant workers on  eligibility to work under the H-2B visa category (see fig. 1).

DOL’s Office of Foreign Labor Certification (OFLC) screens and  processes TLC applications from employers. OFLC is to review these  applications to ensure that no qualified U.S. workers are available for the  job in question and that the wages and working conditions offered to H-2B  workers will not adversely affect similarly employed U.S. workers. In  2015, DOL and DHS jointly issued regulations that set forth a number of  specific requirements that employers must meet in order to obtain a  TLC, including taking specific steps to recruit U.S. workers before hiring  H-2B workers; paying a wage equal to or exceeding the highest of the  prevailing wage or the federal, state, or local minimum wage; paying for  H-2B workers’ transportation costs; and guaranteeing a minimum number  of work hours to H-2B workers. Although employers may submit a TLC  application requesting a specific number of H-2B workers, DOL may  approve all the workers requested, approve a smaller number of workers,  or deny the application. Employers can petition DHS’s U.S. Citizenship  and Immigration Services (USCIS) for a number of workers up to the  number approved by DOL, then USCIS screens and processes  employer’s petitions. DHS is to send the approved petitions to the  Department of State, which screens workers that apply for H-2B visas at  U.S. embassies and consulates overseas. The Department of State is  responsible for interviewing H-2B applicants and reviewing their visa  applications and supporting documentation as part of their adjudication  process.

DOL is the primary agency that enforces H-2B employer requirements  and relevant labor laws.  This enforcement authority is delegated within  the DOL to the Administrator of the Wage and Hour Division (WHD).   WHD  conducts investigations, inspections, and law enforcement  functions that carry out the provisions of 8 U.S.C. § 1184(c), INA section  214(c), and the regulations pertaining to the employment of H–2B  workers, any worker in corresponding employment, or any U.S. worker  improperly rejected for employment or improperly laid off or displaced,  according to DOL. WHD investigates complaints filed by both foreign and  U.S. workers affected by the H–2B program, as well as concerns raised  by other federal agencies, such as DHS or the Department of State,  regarding particular employers and agents. WHD also conducts targeted  or directed (i.e., not complaint-based) investigations of H–2B employers  to evaluate program compliance.

Through OFLC, DOL may audit adjudicated applications to ensure  employers’ compliance with the terms and conditions of their H-2B  Registration, Application for Prevailing Wage Determination, Application  for Temporary Employment Certification, or H-2B Petition and to fulfill the  Secretary’s statutory mandate to certify applications only where  unemployed U.S. workers capable of performing such services cannot be  found. For non-compliant applications, OFLC may request more  information from employers prior to possible debarment. Audits can also  be used to establish a record of employer compliance or non-compliance  with program requirements and because the information they contain  assists DOL in determining whether it needs to further investigate an  employer or its agent or attorney.  In such instances, OFLC refers its  audit findings and underlying documentation to DHS, WHD, or other  appropriate enforcement agencies, who in their turn might conduct a  targeted investigation.

Moreover, DOL’s Office of Inspector General may conduct investigations  of applications suspected of potential fraud. DHS can also conduct certain  enforcement activities exercised through USCIS. USCIS has the authority  to adjudicate the H-2B petition and conduct inquiries on the employer’s H- 2B petition, which includes the approved TLC and any supporting  documentation, to prevent fraud and ensure compliance with H-2B  requirements.

Administration of H-2B Visas and Statutory Changes Made in Recent Years

Generally, according to DHS, it processes and approves employers’  petitions in order of receipt until the cap is reached. However, for the  second half of fiscal year 2018, USCIS announced that employers had  petitioned for more visas during the first five business days of the filing  period than were available under the semiannual allocation. As a result,  per its regulations, DHS used a computer-generated process to randomly  select petitions to consider for approval. Additionally, during fiscal years  2017, 2018 and 2019, Congress enacted provisions that authorized DHS,  after consultation with DOL, to make more visas available beyond the  statutory cap of 66,000 if the agencies determined that the needs of U.S.  businesses could not be satisfied with willing, qualified and able U.S.  workers. Under these provisions, the total number of additional visas  that DHS could make available could be up to the highest number of  returning workers approved in any fiscal year that the returning worker  exemption was in place, which was about 65,000 visas in fiscal year  2007, according to DHS and DOL (therefore up to about 131,000 visas  could be made available in each of these fiscal years). The Secretary of  Homeland Security, after consultation with DOL, decided to make 15,000  additional visas available for each year in fiscal years 2017 and 2018  (81,000 visas total in each year) and 30,000 additional visas for returning  workers in fiscal year 2019 (96,000 visas total). The federal agencies  announced the availability of these additional visas during different  months, based on the date they received statutory authorization, which  were all in the second half of the respective fiscal years (July 2017, May  2018, and May 2019).

Demand for H-2B Visa Workers Increased as Unemployment Decreased

Employer demand for H-2B visas increased from 2010 through 2018 as  the U.S. economy strengthened. The number of employer-submitted  TLC applications that were certified by DOL increased in each year since  2012, and more than doubled from fiscal year 2010 (about 3,700) to 2018  (about 9,500). Additionally, the number of H-2B workers on DOL- certified applications has increased each year since 2012. In fiscal year  2018, DOL certified applications representing about 147,600 H-2B  workers, about a 70 percent increase from fiscal year 2010. As the  number of certified TLC applications and workers has generally increased  since 2010, national unemployment has declined each year since 2010  (see fig. 2).

After DOL certifies the TLC, employers petition DHS to obtain H-2B visas  for the workers they plan to employ. Employers that filed petitions for H- 2B workers varied in the number of workers requested and most were  concentrated in several industries. According to our analysis of DHS  data, in fiscal year 2018, DHS approved petitions from about 3,700 H-2B  employers. The number of H-2B visa workers that employers were  approved for ranged from one to 1,169, with a median of 12 approved H- 2B workers (see fig. 3 for full distribution). Of the about 3,700 employers,  127 were approved for more than 100 visas.

The employers were generally concentrated in administrative and support  services (including landscaping); hospitality, amusement and recreation;  forestry, fishing, and hunting; construction; and manufacturing industries  (see table 1).

In our analysis, we found that in 2018, H-2B employers were  concentrated in 737 counties in the United States that have, on average,  larger labor forces and stronger labor markets than counties without H-2B  employers. For each fiscal year from 2015 through 2018, there were  about 700 counties with H-2B employers and about 2,400 counties  without any H-2B employers, according to our analysis of DHS CLAIMS3  data. Our analysis showed counties with H-2B employers have, on  average, larger labor forces than those without H-2B employers and are  located mostly along the coasts, but can be found throughout the United  States (see fig. 4).

Our analysis of DHS and DOL data found that counties with H-2B  employers generally had lower unemployment rates and higher average  weekly wages than counties that do not have any H-2B employers.  Specifically, the approximate 700 counties with H-2B employers had, on  average, unemployment rates that were about 0.4 of a percentage point  lower than those in counties without H-2B employers. Moreover, lower  unemployment was consistent in every month from fiscal years 2015  through 2018, regardless of seasonality (see fig. 5). Further, average  weekly wages in counties with H-2B employers were higher by about  $113 per week r than in counties without H-2B employers (average  weekly wage for counties with H-2B employers is $866 and for counties  without H-2B employers is $754). This relationship held for every  quarter from fiscal years 2015 through 2018 (see fig. 6).

The connection between strong labor markets and employers’ use of H- 2B workers may stem from multiple factors. Counties with strong labor  markets may have a smaller pool of unemployed workers to fill seasonal  positions leading employers in these counties to use H-2B visas as a way  to fill these positions. Alternatively, counties with larger, more urban  populations may have stronger labor markets. These larger population  counties have more employers than smaller counties; therefore, they are  more likely to have at least one employer with H-2B workers.

Selected Businesses Reported Difficulty with Planning Due to Visa Cap, but Effects on Economic Performance and U.S. Employment Varied across Industries Many Selected Businesses Reported that Uncertainty in Getting H- 2B Visas Presented a Planning Challenge, but Responses about Economic Performance and Employment Were Not as Consistent

Most selected H-2B employers we interviewed said uncertainty in getting  H-2B visas is a challenge to their business planning. We interviewed and  gave questionnaires to 35 H-2B employers—19 of which operated small  businesses. In our interviews, 21 H-2B employers said the uncertainty  of receiving H-2B visas affected their ability to plan for possible business  growth and investment.

Some employers explained that their operations depended on getting H- 2B workers annually and that any decrease in the number of expected H- 2B workers would substantially impact their business decisions. For  example, one Texas-based landscaping employer we interviewed cited  uncertainty as a reason to stop accepting new contracts and to reduce  investments in new equipment, such as trucks and lawn mowers, and  other landscaping supplies. In Maryland, one seafood processing  employer said that because of the uncertainty related to receiving H-2B  visas they could not implement planned investments, such as expanding  their facilities or purchasing trucks for transporting goods, and shut down  their business for a time. Similarly, one hospitality employer in Michigan told us that due to the uncertainty of getting visas, they opted not to invest  in expanding their hotel amenities or make renovations.

In addition, of the 35 H-2B employers we interviewed, seven said the  lottery system used by DHS exacerbated the uncertainty of getting H-2B  visas. Some of these seven employers described the lottery as seemingly  unfair to employers who might have been long-time participants of the  program and would not be able to predict if they will be getting visas.  Some employers stated that they would prefer that DHS use a more  equitable method to award and distribute visas, such as giving every  employer a proportion of the visas they petition for.

Beyond the uncertainty associated with the H-2B program, employers we  spoke with reported varying business experiences during fiscal years  2017 and 2018. Specifically, the 29 H-2B employers who completed our  questionnaire—15 of whom did not receive all requested H-2B visas  under the standard cap in 2018—reported varied experiences in terms of  revenue, purchases of goods and services for their businesses, and the  employment of U.S. workers.

Revenues. Employers who did not receive all requested H-2B visas  under the standard cap more frequently reported revenue declines than  employers who received visas, according to our analysis of the  questionnaire responses (see fig. 7). Some employers reported that the  loss of customers or contracts may have also contributed to these  revenue declines. According to the questionnaire responses, 12 of the 14  employers who did not receive all requested H-2B visas under the  standard cap reported losing customers and contracts in fiscal year 2018.

However, employers’ experiences varied across industries, and other  factors besides obtaining H-2B visas may have also affected revenues.  For example, seafood processing employers that did not receive all  requested H-2B visas under the standard cap more frequently  experienced revenue declines than construction employers that did not  receive all requested H-2B visas under the standard cap, as the latter  may have been better positioned to mitigate the loss of H-2B workers.  (Industry and location-specific factors from our case studies are  discussed later in this report.)

Purchases of goods and services. Based on responses to our  questionnaire, employers that did not receive all requested H-2B visas  under the standard cap more frequently reported declines in purchases of  goods and services than employers who received visas in 2018 (see fig.  8). Employers’ decisions to delay investments on their businesses may  have contributed to declines in the purchases of goods and services.  Based on questionnaire responses, 11 of the 15 employers who did not  receive all requested H-2B visas under the standard cap reported delayed  investments in equipment or maintenance repairs. Additionally, some also  reported delayed investments in business expansion. Corroborating what  H-2B employers reported, nine of the 12 supply companies we interviewed in our case studies said they experienced decreased demand  for their services when H-2B employers did not get visas or got them late.

Similar to their experiences with revenues, employers’ reported  experiences with purchases of goods and services varied across  industries as other factors apart from obtaining H-2B visas may have  affected employers’ purchases of goods and services. For example, more  construction employers who did not receive all requested H-2B visas  under the standard cap reported on their questionnaires that they could  maintain their levels of purchasing goods and services than hospitality  employers who did not receive all requested H-2B visas under the  standard cap, possibly due to construction employers’ ability to mitigate  the impacts of not receiving H-2B workers.

Employment of U.S. workers. Based on our questionnaire responses,  no clear pattern emerged among employers with regard to changes in the  employment of U.S. workers (see fig. 9). Mainly there is no evidence of  a notable number of layoffs of U.S. workers among employers that did not  receive all requested H-2B visas under the standard cap. According to  our questionnaire responses, three of the 15 employers who did not  receive all requested H-2B visas under the standard cap in fiscal year  2018 reported having to lay off or reduce hours of U.S. workers. However,  responses regarding increases in U.S. employment are difficult to  interpret because our questionnaire did not ask how long newly hired  employees actually stayed with employers.

Employers in Different Industries and Locations Reported Varying Characteristics and Efforts to Mitigate Effects of Visa Cap

Local and industry-specific characteristics affected how selected  employers mitigated impacts from the H-2B visa cap and may help  explain the varied outcomes reported in revenue, supply purchases, and  employment of U.S. workers. For example, 18 of the 35 employers we  interviewed said that the characteristics of their own businesses, such as  seasonality, affected how they tried to mitigate impacts from the H-2B  visa cap. Employers told us that they used several methods to mitigate  the effects of not having H-2B workers; however, their success in  mitigating impacts varied (see table 2).

Seafood processing employers on Maryland’s eastern shore—which  includes Dorchester County—hire H-2B workers for picking meat out of  crabs, according to a local trade association (see fig. 10). Typically,  crabbing season begins on April 1st and ends in late November. These  employers are heavily reliant on H-2B workers, and, on average, 54  percent of their workforce is comprised of H-2B workers for fiscal year  2018, according to questionnaire responses. Seafood processing  employers we interviewed were also long-time users of the H-2B  program. Of the six seafood processing employers we interviewed, five  said they had participated in the H-2B visa program for more than 20  years, while the remaining employer had participated for about two  years.

Seafood processing employers that did not receive all requested H-2B  visas under the standard cap in 2018 reported notable impacts to their  businesses. Of the five seafood employers that responded to our  questionnaire, three did not receive the H-2B visas they requested under  the standard cap, and these employers reported that their revenue  declined by more than 10 percent. All three employers attributed their  revenue declines to not getting the requested H-2B workers in time for the  season. Two of the employers who did not receive H-2B workers in time  for the season, told us that they shut down their operations for part of the  season.

Moreover, seafood processing employers told us that not getting H-2B  workers, or getting them late in the season, led to a reduction in U.S.  employment. For example, one employer we interviewed said the use of  truck drivers and administrative staff declined without H-2B workers to  perform the crab picking work. In addition, all of the seafood processing  employers who did not get their H-2B workers reported declines in  supplies purchased (e.g., crabs, boxes, pots, and packaging). Of the five  seafood supply companies we interviewed, all of them confirmed that  when H-2B employers did not receive all requested H-2B visas under the  standard cap, demand for their services and products declined.

Employers told us that impacts of the H-2B visa cap were aggravated by  several industry-specific factors. For example, one employer said the  strict seasonality of crab picking made delays in receiving H-2B workers  problematic. In addition, seafood employers said their efforts to recruit  U.S. workers faced challenges. Different employers mentioned  challenges including this strict seasonality; the nature of the work, which  generally does not appeal to U.S. workers including high school and  college students; and the employer’s remote location. Finally, some  employers emphasized that there was not a good substitute for manual  labor when they did not get H-2B workers. One seafood processing  employer said the industry had tried to automate crab picking, but was  unsuccessful.

Selected landscaping employers we interviewed in Dallas-Ft. Worth,  Texas said they typically hire H-2B workers to perform residential and commercial landscaping, such as mowing lawns, planting trees, building  outdoor living spaces, and performing other lawn care maintenance (see  fig. 11). Landscaping employers told us that their season can begin as  early as February and can last until mid-December. On average, among  the landscaping employers that responded to our questionnaire, 35  percent of their workforce was comprised of H-2B workers. Of the 11  landscaping employers we interviewed, eight said they have participated  for about 10 years or more, while three said they have participated in the  H-2B visa program for about three years or less.

Of the 11 landscaping employers who responded to our questionnaire,  three did not get all visas requested under the standard cap. All three  employers who did not receive all requested H-2B visas reported revenue  declines and said during our interviews that revenue declines were due to  not getting H-2B workers or getting them late in the season. Moreover, of  the 11 landscaping employers that responded to our questionnaire, six— including employers that did and did not receive all requested visas under  the standard cap—reported declines in supply purchases.

Landscaping employers told us that low local unemployment and the  intensive manual labor in the heat were challenges to recruiting more  U.S. workers. Of the 11 landscaping employers we interviewed, three  said that when they did not get their H-2B workers, they tried to partially  mitigate the situation by having existing staff work additional overtime  hours. Other efforts to mitigate the impacts of having fewer H-2B workers  included spreading their work across the year and helping returning H-2B  workers apply for permanent residency using EB-3 visas—immigrant  visas available to certain categories of skilled and unskilled workers.  Some landscaping employers said that using EB-3 visas would enable  them to have more workers who are permanent residents, which would  help promote a more stable workforce, according to our interviews.

Selected construction employers we interviewed in Maricopa County,  Arizona, said they generally hire H-2B workers to perform manual labor,  such as building housing panels or drywalling (see fig. 12). Construction  employers said their season generally begins as early as March and lasts  until November. On average, among the construction employers that  responded to our questionnaire, 8.5 percent of their workforce was  comprised of H-2B workers. Of the six construction companies we  interviewed, all of them said they have participated in the H-2B visa  program for about five years or less.

The three construction employers who did not receive all requested H-2B  visas under the standard cap in 2018 and responded to our questionnaire  reported that they did not experience significant revenue declines. Of  these three employers, two reported increased revenues between 2017  and 2018, while one did not report revenue. One employer said during  interviews that had they received H-2B workers in 2018 they might have  experienced a significant revenue increase compared to 2017 because of  the expansion of the construction industry overall in Maricopa County. In  addition, among the three construction employers who responded to our  questionnaire and did not receive all requested H-2B visas under the  standard cap, two reported increased supply purchases during fiscal year  2018.

Although construction employers told us that recruiting more U.S. workers  was challenging due to low unemployment and the manual nature of the  work, several factors may have helped construction employers mitigate  the impacts of the visa cap. Of the six construction employers we  interviewed, two told us they attempted to mitigate impacts from the visa  cap by spreading their work across the year and prebuilding housing  frames during the offseason—a practice referred to as even-flowing.  Moreover, some construction employers said they either subcontracted  work during times they could not hire new U.S. workers, or had their  existing U.S. workers work additional overtime hours.

Selected hospitality employers in Mackinac Island, Michigan, and  Barnstable County, Massachusetts, said they commonly hire H-2B  workers to perform work such as housekeeping and working in kitchens  (see fig. 13). Generally, some employers said their season begins in  April and lasts through the end of October or early November. Of the 12  hospitality employers we interviewed, five said they have participated in  the H-2B visa program for between five to 20 years, four said they have  participated in the visa program for more than 20 years, and three did not  say when they started participating in the visa program. Moreover, H-2B  workers comprised an average of 35 percent of the hospitality employers’  workforce, based on questionnaire responses.

Of the nine hospitality employers who responded to our questionnaire, six  did not receive all requested H-2B visas they petitioned for under the  standard cap in 2018. Of those six employers, three reported revenue  declines in 2018, while the other three reported increased revenues.  However, some hospitality employers said that the lack of H-2B workers  did affect the quality of their services or led them to reduce their  operations. For example, one resort we interviewed said they had to close  down a signature restaurant because they did not receive the H-2B  workers necessary for the season. Of the nine hospitality employers that  responded to our questionnaire, five reported a decline in supply  purchases for 2018.

A variety of factors may help explain the outcomes for hospitality  employers. On one hand, hospitality employers told us they were  challenged to recruit more U.S. workers due to the seasonality of the  work and sparse local population, and the fact that students are not  available for the whole season. On the other hand, one hospitality  employer that did not receive H-2B visas in 2018 said during interviews  that they did not experience a revenue decline because guests had  booked their reservations in advance. Also, hospitality employers  reported using various strategies to mitigate the impact of the cap. For  example, of the six hospitality employers who did not receive all  requested H-2B visas in 2018, three employers hired more foreign  students under the J-1 exchange program for certain students and other  visitors. Moreover, four hospitality employers said they applied for H-2B  visa extensions, which according to one employer are for H-2B workers  already in the United States. In addition, one employer also mentioned  that they contracted their housekeeping services to outside cleaning  crews, which negatively affected the establishment’s quality of service.

Stakeholders Identified Potential Effects of Proposed Changes to the H-2B Visa Program

In response to the increase in demand for H-2B visas and the uncertainty  employers expressed regarding whether they would be approved for  workers under the H-2B visa cap, stakeholders and others have  suggested changes to the H-2B program. Based on interviews with  knowledgeable stakeholders and a review of their publications, we  identified six proposals for changing the H-2B visa cap. In our  discussion groups and interviews, 12 knowledgeable stakeholders— henceforth referred to as stakeholders—identified potential effects for  each of the six proposals. As the stakeholders discussed the various  policy proposals, they identified two recurring policy goals: policy  proposals should (1) minimize uncertainty and (2) maintain or increase protections for U.S. and H-2B workers. We did not independently assess  the individual merits or accuracy of the views expressed by these  stakeholders, nor did we assess the feasibility or administrative costs of  the proposals discussed. Additionally, we did not assess which options  would require Congressional action or which options could be  implemented through agency action. Below, we present summaries of the  six proposals and some of their potential effects as identified by these  stakeholders. The first two proposals listed would eliminate or adjust the  cap and the remaining four would keep the current cap in place and  address alternative ways to allocate visas.

Shortage list. This proposal would eliminate the statutory cap and allow  employers to recruit foreign workers for occupations with worker  shortages. An expert commission would compile the shortage list  annually, based on relevant factors, such as wage growth or job  vacancies.

Potential effects identified by stakeholders:  It would provide more evidence-based and data-driven  justifications for the number of visas and the  industries/occupations that receive them.

It would foster public credibility for the H-2B visa program because  it demonstrates a bona fide need for H-2B workers.

It would accelerate the H-2B visa approval process for certain  industries.

Because wage growth would be an indicator of occupational  shortages, it may incentivize employers in major H-2B industries  to offer higher wages, if economically beneficial.

Some employers approved under the current system would not be  approved for H-2B visa workers because their occupations are not  on the shortage list.

It may lack accuracy because national level occupational  shortages may not reflect shortages in certain industries and  occupations within specific locations or identify local labor market  trends. BLS data may not accurately capture such trends.

Annual adjustment. This proposal would adjust the cap annually (either  up or down) based on economic indicators such as unemployment rate or  number of TLC applications approved by DOL.

Potential effects identified by stakeholders:  It would allow employers to use H-2B workers when U.S. workers  are not available due to low unemployment and revert to U.S.  workers in times of higher unemployment. Having a flexible cap  could be more predictable than the current system.

It would be a more accurate reflection of need than using an  arbitrary cap.

While not discussed in the proposal language, if wage growth is  also considered as an economic indicator in the annual  adjustment, it might incentivize employers to improve wages, if  economically beneficial.

Using a national indicator would not fully reflect localized needs  for H-2B workers.

It would put DOL in a position where it would be determining  employers’ needs.

Using approved TLC applications is not a good measure of  demand because they may not reflect demand for labor.

Any delays in processing TLC applications could lead to difficulties  in determining the annual adjustment in a timely manner.

Returning workers exemption. This proposal would retain the current  H-2B visa cap of 66,000 and make the returning worker exemption  permanent.

Potential effects identified by stakeholders:  It could lead to increased predictability. Employers would have  more certainty on whether they will be approved for H-2B visas,  and H-2B workers would know whether they would have the  option to return to their jobs in the United States.

There is familiarity—among employers, H-2B workers, and  administrators—with returning worker exemption as it has been  implemented before.

It may be more efficient for employers as returning workers  already have training.

There could be potential cost savings for program as returning  workers have already been vetted.

It rewards both workers and employers who are compliant with the  H-2B program.

A permanent returning worker exemption, like any proposed  reform that involves eliminating or increasing the cap, requires  better enforcement of worker protections.

It could increase the possibility that H-2B workers return to poor  working conditions because they have no other economic options.  One stakeholder said this could be mitigated by allowing returning  workers the flexibility to work for different employers than they  worked for in prior years if so desired.

Priority list. This proposal would retain the current H-2B visa cap of  66,000 and give priority to applications from employers that offer the  highest wages or better working conditions.

Potential effects identified by stakeholders:  It creates incentives for employers to improve working conditions.

It may be easy to implement under current law, and may not  require new legislation.

It alleviates problems associated with calculating the prevailing  wage.

It does not account for the wage variation among small and large  employers, geographical locations, or industries. Using the highest  wages to allocate the visas skews the program to certain  occupations and higher-paying geographical locations (even  within the same industries and among similarly sized employers).

If based solely on wages, a priority list could penalize employers  that also have to provide workers with additional benefits such as  housing at no cost.

It would need to be combined with stronger enforcement, such as  employer audits, to ensure that workers are getting paid the  promised higher wage or better conditions.

Quarterly allocation. This proposal would retain the current H-2B visa  cap of 66,000 and allocate visas quarterly rather than twice a year.

Potential effects identified by stakeholders:  It might improve fairness for employers whose season starts late  in the semiannual allocations.

It helps ease the burden on DOL’s computer system.

It reduces the number of employers applying for visas before their  period of need and spreads demand more evenly across the year.

It does not seem to mitigate the issue of having demand exceed  the cap.

In practical terms, quarterly allocation would result in shifting visas  away from certain employers and toward others. Demand for H- 2Bs is especially high in April to June, the third quarter of the fiscal  year. This option would reduce the number of visas for the third  quarter and shift more visas to the fourth quarter.

Auction. This proposal would retain the current H-2B visa cap of 66,000  and the visas would be auctioned to the highest employer bidders.

Potential effects identified by stakeholders:  It uses market forces; employers evaluate how much an H-2B  worker is worth.

It demonstrates the economic cost of keeping the cap low and  determines whether employers are strictly looking for cheap labor.

Auction revenues could be used to ensure the H-2B program has  less adverse effects on U.S. and H-2B workers, raises wages, or  leads to more audits by DOL.

Depending on the design of the auction, it may create a system  where larger, better funded employers unfairly benefit.

It does not address issues of uncertainty faced by employers of H- 2B workers.

It increases labor costs which could reduce the profitability using  H-2B workers.

Federal Agencies Have Taken Steps to Address H-2B Employers’ Hiring Needs and Protect U.S. Workers, but Gaps Remain

Agencies Made Efforts to Respond to Demand for H-2B Workers but Have Not Fully Considered Alternative Approaches Identified in the 2019 Report

Alternative Approaches for Visa Allocation

DHS, in consultation with DOL, has identified some alternatives to the  current approach for allocating H-2B visas. In the Joint Explanatory  Statement accompanying the fiscal year 2018 DHS Appropriations Act,  Congress directed DHS—in consultation with DOL—to review and report  on options for addressing the problem of unavailability of H-2B visas for  employers that need foreign workers late in each semiannual period of  visa availability. In response, DHS issued a report to Congress in June  2019 that laid out six approaches for revising how H-2B visas are  allocated among employers—some of which were similar to the proposals  identified above. The DHS options include (1) a merit-based system for  eligibility that prioritizes employers that have made a significant  contribution to the U.S. economy, (2) designation of eligible occupations  or industries based on factors such as industry unemployment rates, and  (3) distributing visas on a quarterly basis.

DHS has not assessed which of the options outlined in the June 2019  report could be implemented by agency action alone and which would  require Congressional action, nor has it identified which options have the  greatest potential benefit for employers. DHS officials have told us that  they currently lack the resources to assess or implement the proposals  from their June 2019 report or any other alternatives and, while an  assessment may be possible in the future, it would have to be balanced  against other administration priorities. Standards for internal control in the  federal government call on agencies to identify, analyze, and respond to  significant change, including change in the economic environment.  Moving forward with assessing available reform options would position  DHS and DOL to better inform their own and Congress’s decision- making.

Consideration of Economic Trends in Determining Additional Visa Numbers

In determining the number of additional H-2B visas to make available  beyond the standard cap in fiscal years 2017 to 2019, DHS—in  consultation with DOL—relied on data from prior years. In each of the  three years, federal law authorized DHS after consultation with DOL to  provide additional H-2B visas beyond the standard cap if the needs of  U.S. businesses could not be met with U.S. workers, up to the maximum  number of H-2B returning workers in any prior year when the returning  worker exemption was in effect (about 65,000 in 2007, according to the  agencies). DHS made up to 15,000 additional visas available in fiscal  years 2017 and 2018 and up to 30,000 in 2019. In each year, DHS in  consultation with DOL determined the appropriate number of additional  visas by looking at demand for visas in prior years. Specifically, in 2017 it  determined that 15,000 visas would be sufficient to at least meet the  same level of demand as in fiscal year 2016. In 2018, DHS used the  same rationale to determine that up to 15,000 additional visas would  again be sufficient, based on experience with the additional visas in  2017. Most recently, in 2019, DHS in consultation with DOL raised the  number of additional visas to 30,000 in recognition partly of the higher  demand in 2018—when employers filed petitions for about 29,000 visas  during the first five days of the filing period for additional visas. The  demand for returning H-2B workers in prior years and the amount of time  remaining in the fiscal year were also factors in the agencies’ decision  about how many additional visas to provide.

However, using demand in prior years as the primary basis for setting the  number of additional visas in the current year is not consistent with  standards for internal control in the federal government, which call for  agencies to identify, analyze, and respond to significant change, including  change in the economic environment. Indeed, the outcome in 2018,  when DHS made 15,000 additional visas available but employers applied  for almost 30,000 visas, demonstrates the potential limitations of relying  solely on past demand as a predictor of future demand. Examples of  other types of data that may be relevant to gauging trends in employer  demand include unemployment rate, employment, and earnings, which  we have previously identified as potential indicators of labor market  shortages. Some stakeholders have also suggested that the number of  H-2B workers on approved TLC applications is a good measure of visa  demand. The agencies said in the 2018 and 2019 temporary rules making  additional visas available that they did not have enough time remaining in  those fiscal years to conduct a more formal analysis of the adverse  effects on U.S. workers that may result from a broader cap  increase.Assessing the advantages and disadvantages of considering  current economic trends in addition to past demand would help the agencies decide if such an approach would be a better way to estimate  employer need in any future years when Congress authorizes visas  beyond the H-2B standard cap.

According to DHS and DOL, the agencies have also sought to balance  employers’ hiring needs and the interests of U.S. workers by setting a  higher standard that employers must meet to qualify for additional H-2B  visas. To qualify for visas under the standard cap, employers must have  an approved TLC, demonstrating, among other things, that they have a  temporary need for labor and have taken steps to recruit workers in the  United States. From 2017 to 2019, employers applying for the additional  visas were also required to attest that without the visas, they were likely  to suffer irreparable harm, i.e., suffer a severe and permanent financial  loss.  According to the 2017 temporary rule announcing the availability  of additional H-2B visas above the statutory cap, DHS decided to focus  on businesses likely to suffer a severe and permanent financial loss, in  part, to be responsive to some stakeholders that U.S. workers could  potentially be adversely affected by a general cap increase applicable to  all potential employers.  To support their attestation of severe and  permanent financial loss, employers were required to retain  documentation, such as contracts, reservations, or orders that would  have to be cancelled absent the requested H-2B workers. DOL officials  told us the agency’s Wage and Hour Division evaluates the sufficiency of  this documentation in the course of its investigations of H-2B employers,  when applicable. Officials said they examine documentation related to  loss of contracts and dependence on H-2B workers, among other things,  in order to detect significant and voluntary violations of program  requirements.

Changes to Procedures for Assigning TLC Applications to Analysts for Review and Processing

DOL has sought to address rising demand for TLCs and H-2B visas  through changes to how it assigns TLC applications to analysts for  review and processing. Prior to 2018, DOL processed applications  sequentially according to the day they were received, and released  certifications on a rolling basis as all requirements for certification  were met. DOL reported that on January 1, 2018, the first day of the  filing period for employers seeking workers to start on April 1, 2018, it  received approximately 4,498 applications covering 81,008 worker  positions, exceeding the annual visa allotment by nearly 250 percent.  According to the agency, this was the first time in recent years that  this had happened. On January 17, 208, agency officials announced  that beginning February 20, 2018, they would begin to release  certified applications sequentially according to the day and time of  receipt. This in turn led to a large number of employers with approved  TLCs submitting their H-2B visa petitions within a small window. DHS  officials explained that receiving a large volume of petitions in a short  time frame required USCIS to approve petitions following random  selection.

In June 2018, anticipating further increases in applications, DOL  announced that it would sequentially assign applications to analysts in  order of day and—in an adjustment from the earlier procedures—time  of receipt to the millisecond. Once applications were assigned,  analysts would initiate review of applications in the order of receipt  date and time, issue first actions on a rolling basis, and issue  certifications as all regulatory requirements were met.

DOL reported that in January 2019, it received approximately 5,276  applications covering more than 96,400 worker positions for start  dates of work on April 1, exceeding the semiannual visa allocation by  nearly 300 percent.  Furthermore, DOL reported that on January 1,  2019, within the first five minutes of the filing period for April 1 start  dates of employment, the agency’s network infrastructure supporting  OFLC’s electronic filing system experienced almost 23,000 log-in  attempts, in contrast with 721 attempts in the same time period in  2018. This volume of simultaneous system users caused the  electronic filing system to become unresponsive, preventing nearly all  employers from submitting applications until the system reopened on  January 7, 2019..

DOL Has Made Efforts to Strengthen U.S. Worker Protections, but Does Not Target Its Audits of H-2B Employers

DOL’s Office of Foreign Labor Certification conducts recordkeeping audits  of adjudicated TLCs to assess employers’ compliance with the terms and  conditions attested to in their applications and to fulfill the Secretary’s  statutory mandate to certify applications only where unemployed U.S.  workers capable of performing the needed work cannot be found. DOL  officials told us the agency reviews the original TLC application and  requests additional documentation of the employer’s activities when  conducting audits to determine whether the employer is in compliance  with program requirements. Specifically, employers with minor violations  receive a warning; violations described in 20 C.F.R. § 655.71 could lead  to increased DOL monitoring and assistance with the employer’s  recruitment efforts; and employers with violations described in 20 C.F.R.  § 655.73 could be debarred from the H-2B program.

DOL is defending a challenge to its implementation of the randomization process for  assigning applications filed by employers seeking H-2B visas, in Padilla Construction Co.  v. Scalia, No. 2:18-cv-01214-GW-AGR (C.D. Cal.).

While DOL has changed its TLC procedures so they call for a randomization process on  an on-going basis, DHS generally processes employers’ petitions on a first-come, first- served basis except when a large number of petitions are received in the first five days of  the filing period. officials reported that during fiscal year 2018 they initiated 493 audits of  H-2B employers, representing seven percent of all employers with  approved TLCs issued during the year. They also reported that of the 503  audits completed during fiscal year 2018, which includes audits initiated  during 2017, more than half resulted in a warning letter being sent to the  employer, with only a small number finding more serious violations (see  fig. 14).

In our review of a non-generalizable sample of letters sent to H-2B  employers with audit results, we found several examples of the types of  issues identified by DOL. Several warning letters noted violations  related to the period of employment of H-2B workers, such as failing to  notify OFLC when H-2B workers left their jobs earlier than planned. In  letters of assisted recruitment that we reviewed, employer violations  included failure to accurately advertise rates of pay and failure to meet  requirements for posting job advertisements in newspapers. Finally, the  debarment letters we reviewed cited the employer’s failure to provide the  documentation that DOL requested as part of the audit.

DOL has not taken a risk-based approach to selecting employers to audit.  OFLC’s Certifying Officer has the sole discretion to choose the  applications selected for audit, including selecting applications using a  random assignment method. DOL officials said the agency has for the  most part randomly selected H-2B employers for audits, although they  also select some employers because of a prior violation. Officials said  that the system currently used to track audits captures data on audit  workloads and final audit outcomes, but the agency has a plan to develop  a new system that would also track the individual violations found in  audits and the industry and job classification associated with the  employer. With this capacity, officials said they could take a more risk- based approach to selecting employers for audits, based on trends in  violations by industry or job classification. However, officials said that the  further development and implementation of this tracking system is  currently on hold due to resource constraints with no firm date for moving  forward. Standards for internal control in the federal government call on  agencies to identify, analyze, and respond to risks to meeting their  objectives. Until it implements a risk-based approach to selecting H-2B  employers for audits, DOL may miss opportunities to allocate its limited  audit resources more efficiently and to detect violations that could  adversely affect U.S. and H-2B workers. Taking a more targeted  approach is especially important in light of a 2019 Office of Inspector  General (OIG) report that stated over the past decade, the OIG and other  federal agencies have conducted over 70 criminal investigations in the H- 2B program related to potential fraud involving employers, attorneys, and  others.

DOL also works to protect U.S. workers through setting the prevailing  wage that employers must pay and has taken steps to enhance the  accuracy of its prevailing wage determination by limiting the use of  employer-provided wage surveys. DOL is responsible for determining the  prevailing wage applicable to an H-2B application. An employer must  pay a wage at least equal to the prevailing wage obtained from the  National Prevailing Wage center within OFLC, or the federal, state, or  local minimum wage, whichever is the highest. The prevailing wage that  H-2B employers must pay their H-2B and U.S. workers is set by BLS’s  Occupational Employment Statistics (OES) survey in all cases except  when a wage is set by a valid and controlling collective bargaining  agreement or the employer submits an employer-provided survey that  meets DOL’s requirements. When they promulgated a final rule in 2015  on the methodology for determining the prevailing wages to be paid H-2B  workers, DHS and DOL decided that it would limit the circumstances  under which employers may use employer-provided wage surveys to set  the prevailing wage. The preamble to the rule described a court decision  that found that DOL had arbitrarily allowed wealthy employers to pay for  expensive private surveys when other employers in the same occupation  who could not afford to conduct such surveys paid the higher OES mean  wage. In light of this decision, as well as DOL’s own experience that  employer-provided surveys are not any more consistent or reliable, and  concerns raised by worker advocates, the agencies determined that the  options for accepting employer-provided surveys are more limited. The  2015 regulations require, among other things, that employer-provided  surveys be conducted independently by a state agency or university, and  meet certain methodological standards. Since 2014, the proportion of H- 2B employers using employer-provided wage surveys to set the prevailing  wage has declined from almost 20 percent to less than one percent  according to our analysis of DOL data (see fig. 15). DOL officials told us  the most significant contributor to the decline in employer-provided wage  surveys was the requirement to have a state agency or university  independently conduct employer-provided wage surveys—prohibiting  employers from directly paying for these surveys. Officials also said that  the seafood industry in locations such as Maryland and Louisiana  continues to use employer-provided wage surveys, as state agencies  have long histories of conducting wage surveys for seafood employers in  these areas.

Employers we interviewed who depend on temporary foreign labor said  the statutory cap on H-2B visas presents challenges for them, and these  challenges can be driven at least partly by demand that fluctuates with  the economy. Some employers—for example, those with fewer local  workers available for hire—may face greater financial risks than others  when they are denied H-2B workers due to the cap. More broadly, H-2B  employers are challenged by uncertainty regarding whether they will  receive H-2B workers in any given year, complicating their efforts to plan  future operations, such as expansion or investment. DHS and DOL have  taken an important first step towards addressing these challenges by  identifying options for allocating visas. However, until the agencies  assess such options, they cannot determine which, if any, to implement  under their current authority or what legislative changes may be needed  to improve the program. In the meantime, as long as DHS and DOL  continue to rely primarily on prior year demand to determine the  appropriate number of additional visas to make available beyond the  standard cap—when granted this authority by Congress—the agencies  may miss an opportunity to leverage data on current economic trends and  other factors. Assessing the advantages and disadvantages of using  current economic data would help the agencies determine the feasibility  of more accurate projections, which would help mitigate uncertainty and  related challenges for H-2B employers. The steps DOL has taken in  recent years to enforce worker protection requirements and promote  accurate wage levels so as not to undermine U.S. workers show promise.  However, until DOL moves ahead with taking a more targeted approach  to selecting employers for audits, it may miss opportunities to efficiently  leverage the scarce resources available to identify and prevent worker  protection violations.

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)

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)

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)

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)

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)

We provided a draft of this report to DHS and DOL for their review and  comment. Both agencies provided written comments, which are  reproduced in appendices III and IV, respectively. Both agencies also  provided technical comments, which we incorporated as appropriate.

In its comments, DHS agreed with our first recommendation to assess  options for changing the H-2B visa program, and noted that it plans to  work further with DOL to explore options for improving the H-2B visa  program and possibly develop proposals for legislative changes. DHS did  not agree with our third recommendation to assess the advantages and  disadvantages of considering current economic trends—which was the  other recommendation we directed to the agency. Specifically, 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 fiscal years 2017 through 2020, DHS was authorized to increase the  number of H-2B visas beyond the statutory cap, after consulting with DOL  to determine that “the needs of American businesses  be  satisfied…with United States workers...”  In exercising this authority in  prior years, DHS stated that “he scope of the assessment called for by  the statute  is quite broad, and accordingly  delegates the Secretary of Homeland Security broad discretion to identify  the business needs he finds most relevant.”  In light of DHS’s broad  view of its authority, we continue 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. If they determine  that using such data would be warranted, the agencies would then be well  positioned to implement such an approach if DHS is granted such  authority in the future. Moreover, if—as DHS stated in its response to our  recommendation—the agency 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.

DOL agreed with the three recommendations addressed to it. Regarding  our second recommendation to work with DHS to assess options for  changing the H-2B visa program, DOL said it is prepared to work with  DHS to consider options for changing the H-2B program and to provide  any technical assistance that Congress may need on this issue.  Regarding our fourth recommendation, DOL said it is prepared 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. Regarding our fifth recommendation, DOL noted  that while further development of a system for tracking industry and  occupational trends in H-2B employer violations is currently 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.

We are sending copies of this report to applicable Congressional  committees, the Secretary of Homeland Security, the Secretary of Labor,  and other interested parties. In addition, the report will be available at no  charge on GAO’s website at http://www.gao.gov.

If you or your staff have any questions about this report, please contact  me at (202) 512-7215 or brownbarnesc@gao.gov. Contact points for our  Offices of Congressional Relations and Public Affairs may be found on  the last page of this report. GAO staff members who made key  contributions to this report are listed in appendix V.

Our review: (1) describes trends in the demand for H-2B workers, (2)  describes selected employers’ reports of how the visa cap has influenced  their economic performance and employment of U.S. workers, (3)  summarizes proposals for adjusting the H-2B statutory cap or how visas  are allocated, and (4) assesses how the federal agencies that administer  H-2B visas sought to meet employers’ H-2B hiring needs and protect U.S.  workers.

To address our first objective, we analyzed administrative data sets from  the Department of Homeland Security (DHS), the Department or Labor  (DOL) Employment and Training Administration, and the Bureau of Labor  Statistics (BLS). To address our second objective, we conducted case  studies of four industries in specific locations. To address our third  objective, we held discussion groups and conducted interviews with  knowledgeable stakeholders regarding proposals to change the H-2B visa  cap we had identified through background research. To address our  fourth objective, we reviewed relevant federal laws, regulations, and other  documents; reviewed agency data; and interviewed federal officials.

Analysis of National- and County-Level Administrative Data

We used DOL temporary labor certification (TLC) data and national  unemployment rate statistics for fiscal years 2010 through 2018 to  provide trends in number of applications DOL has received and national  unemployment rate. The TLC data are administrative data on applications  from employers for H-2B visas, which we found sufficiently reliable for our  purposes after reviewing technical documentation and interviewing  knowledgeable agency officials. DOL releases public disclosure files that  contain administrative data from employers’ H-2B applications for TLC.  Our analysis took the public disclosure files and reported the number of  certified applications and workers for each fiscal year from 2010 through  2018. In order to report the national unemployment rate for the United  States, we used BLS’ report on historical national unemployment rates.

To address how counties with H-2B employers compare to counties  without H-2B employers, we utilized several administrative data sets. We  used DHS Computer Linked Application Information Management System  (CLAIMS3) data, which we found sufficiently reliable for our purposes by  reviewing technical documentation, interviewing knowledgeable agency  officials, and electronic testing of data, to identify the counties with H-2B  employers for each fiscal year from 2015 through 2018. The CLAIMS3  data track all petitions for H-2B visas (as well as other visas). These data  include employer address and number of H-2B visas approved. Using  the employer address information, we identified the county in which H-2B  visa employer is located. After the county is identified, we then  aggregated all of the approved H-2B visa petitions within each county.  After identifying the counties with H-2B employers, we then combined this  with BLS data sets—Local Area Unemployment Statistics (LAUS) and  Quarterly Census of Employment and Wages (QCEW)—which we found  sufficiently reliable after reviewing technical documentation to get county- level data on unemployment rate, labor force, and average weekly wages  to make county-level comparisons. The LAUS is a federal-state  cooperative effort in which monthly estimates of total employment and  unemployment are prepared for counties and county-equivalents. From  this data set, we used the unemployment rate and the labor force  statistics by county. The QCEW program publishes a quarterly count of  employment and wages reported by employers. From this data set, we  used the average weekly wages data across counties for fiscal years  2015 through 2018. After we had combined the CLAIMS3 data with the  LAUS and QCEW data sets, we compared summary statistics on  unemployment rates and average weekly wages for counties with H-2B  employers to counties without H-2B employers. The average weekly  wages were inflation adjusted at the state level to constant 2018 dollars.

To check whether our results of the comparison were being driven by a  few outlying counties, we performed several additional analyses. To see if  the results were being driven by counties that relied more heavily on H-2B  visas, we created quartiles using the number of H-2B petitions approved  within a county and also created quartiles using the percentage of H-2B  visas as a percent of the total labor force. Next, in order to determine if  the results were because of the population sizes of the counties, we spilt  the counties in quartiles based on the size of labor force to compare  counties with and without H-2B employers by similar sized counties by  population. Finally, we incorporated TLC data on industries to provide  comparisons between our selected industries noted above (see appendix  II).

To examine the experiences of H-2B employers and their suppliers with  the H-2B program in recent years we conducted case studies of four  industries in specific locations: seafood processing in Dorchester County,  Maryland; landscaping in Dallas County, Texas; construction in Maricopa  County, Arizona; and hospitality in Mackinac County, Michigan (hotels),  and Barnstable County, Massachusetts (restaurants). (See fig. 16).

We selected these industries because they were among the heaviest  users of the H-2B program in fiscal year 2018. Using DOL data on fiscal  year 2018 TLCs, we determined the total number of H-2B workers  approved across all TLCs associated with each NAICS code, and then  identified the NAICS codes with the greatest number of approved  workers. The four selected industries were all among the ten leading  industries in terms of number of approved workers (see table 3).  Amusement, gambling, and recreation industries and support activities for  forestry were also among the top ten. However, representatives of these  industries told us that employers typically move from location to location  during their seasons, making it difficult to conduct a case study of  employers in a particular location.

For each industry, we selected one or two counties in which to conduct  our case study. We selected these counties to achieve diversity in  several factors: the total number of H-2B workers approved for employers  in the county in fiscal year 2018; the number of H-2B workers approved  under TLCs associated with that particular industry in the county in fiscal  year 2018 (e.g., the number of H-2B landscaping or hospitality workers);  the proportion of all workers in the county who are H-2B workers in 2018;  the proportion of workers in that particular industry that are H-2B workers  in the county in 2018 (e.g., the proportion of all landscaping workers in  the county that are H-2B workers); county unemployment rate in January  2018; and geographic location (see table 4).

As part of each case study, we interviewed H-2B employers who received  visas during fiscal year 2018, H-2B employers who did not receive visas  during fiscal year 2018, and businesses who supply goods or services to  H-2B employers. Across the case studies, we interviewed 15 H-2B  employers who received visas, 20 H-2B employers who did not receive  visas, and 12 supplier businesses. We conducted a mix of individual and  group interviews with employers, and generally used the same questions  for each category of employers across industries. For all of our case  studies, we worked with industry groups to recruit employers to  participate in our interviews. These industry groups reached out to local  employers to identify H-2B employers and in some cases also supplier  businesses who would be willing to speak with us. In a few cases, we  also identified supplier businesses for interviews through our case study  interviews with employers. In our interviews with employers, we asked  about topics including their efforts to recruit U.S. workers, their  experiences with the H-2B program in recent years, any impacts on their  businesses of being denied H-2B visas, actions taken to adapt to not  receiving visas, and any impacts on supplier businesses of being denied  H-2B visas. Besides interviewing employers, we also interviewed a state  workforce agency as part of each case study, asking questions about  topics including the agency’s role in helping H-2B employers recruit U.S.  workers, the outcomes of H-2B employers’ recruitment efforts, and any  challenges with such recruiting efforts.

In addition, as part of our case studies, we asked the H-2B employers we  interviewed to complete a questionnaire. This questionnaire covered  topics including the employer’s gross sales in fiscal years 2017 and 2018;  the employer’s number of employees in fiscal years 2017 and 2018, both  U.S. and H-2B employees; the employer’s purchases of goods and  services in fiscal years 2017 and 2018; and any challenges created by  not receiving H-2B visas in fiscal year 2018. We received responses from  30 employers, including from five seafood processing employers, 11  landscaping employers, four construction employers, and 10 hospitality  employers. Some respondents did not answer every question in the  questionnaire. We dropped one of the 30 questionnaire responses from  our analyses because the employer reported not receiving H-2B visas in  2017 which, if included, could distort our findings. In our analysis of  changes to revenues, supply purchases, and employment based on  questionnaire responses, we did not control for factors beyond the H-2B  visa cap that may have affected the results. So, any results reported from  the questionnaire may be due in part to these unobserved factors.  Additionally, we did not independently verify the information provided in  the questionnaire responses, which could lead to our analysis not  completely representing the full effect of the H-2B visa cap. Finally, the  questionnaire responses we received are representative of only the firms  that responded and may not be more widely generalizable to the industry  level or larger geographic regions.

Discussion Groups and Interviews with Stakeholders on Proposals to Change the H-2B Visa Cap

As we performed background research on H-2B visas and the cap, we  interviewed several knowledgeable stakeholders. We then identified the  proposals for changing the H-2B visa cap in the background interviews  and publications of these stakeholders (see table 5).

To address what options have been proposed for adjusting the H-2B  statutory cap or how visas are allocated, we interviewed 12  knowledgeable stakeholders across two discussion groups and two  interviews. The discussion groups were held on July 25, 2019 and July  29, 2019, and the interviews were held on August 1, 2019 and August 12,  2019.

As part of our discussion with the experts and knowledgeable  stakeholders, we asked for additional proposals that were not included in  the six identified in the above table. This discussion led to additional  proposals. These additional proposals are presented in table 6.

We used several approaches to begin identifying potential stakeholders  on the H-2B visa program. First, we reviewed our background interviews  with stakeholders for this engagement to craft a preliminary list of  potential individuals to contact. Then, we identified additional researchers  that have published works on the H-2B visa program. Afterward, we  conducted several searches on the Congressional Quarterly website to  collect a list of witnesses who testified before Congress on H-2B visa  issues. Finally, obtained an additional list of authors who published work  on the H-2B visa program and names of individuals that have testified  before Congress on issues related to the H-2B visa program. Through  this process, we identified 22 stakeholders to be included in our  discussion groups and interviews. We selected 12 knowledgeable  stakeholders based on several criteria: published work on the H-2B visa  program and number of times publications have been cited by other  scholars, testified before Congress on H-2B visa issues, advocated for  relevant stakeholder groups interested in the H-2B visa program, and  identified by peers as being a knowledgeable stakeholder on the H-2B  visa program. We also sought to achieve a balance of perspectives by the  selected knowledgeable stakeholders (see table 7).

Assessment of Federal Agencies’ Administration of H-2B Visa Program

To assess DHS’s and DOL’s efforts to meet employers’ hiring needs and  protect U.S. workers, we reviewed relevant federal laws, regulations, and  documents such as agency procedures and visa application forms. We  interviewed DHS and DOL officials. We reviewed DOL data on the  number and outcomes of audits conducted of H-2B employers during  fiscal year 2018. We assessed the reliability of these data by interviewing  DOL officials, and found them to be sufficiently reliable for our reporting  purpose, which was to present a summary of the agency’s H-2B audit  program in fiscal year 2018. We reviewed 25 letters that DOL sent to H- 2B employers as part of audits completed from September 14, 2017,  through April 5, 2019, including eight requests for supplemental  information, six warning letters, six assisted recruitment letters, and five  debarment letters. The samples of requests for supplemental information,  warning letters, and assisted recruitment letters were non-generalizable  samples of all letters in these categories. They were judgmentally  selected from a randomly generated sample of all letters in the universe  to achieve diversity in terms of employer industry and location, among  other things. The debarment letters we reviewed represented the full  universe of such letters. In our review of the letters, one analyst identified  issues discussed in each letter and placed them in broader categories,  another analyst verified the issues and categories, and any differences in  interpretation were resolved. We analyzed DOL data on how prevailing  wage levels were determined for H-2B employers for fiscal years 2014 to  2018. We assessed the reliability of these data through review of related  documentation and interviews with DOL officials, and found the data to be  sufficiently reliable for our reporting purpose, which was to present the  trends in how prevailing wage was set among H-2B employers over a 5- year period. After identifying DHS’s and DOL’s actions through methods  such as reviewing documents and interviewing agency officials, we  assessed them according to standards for internal control in the federal  government related to identifying and responding to change and risk.

In our analysis of Department of Homeland Security and Department of  Labor data, we found that counties with H-2B employers have lower  unemployment rates and higher average weekly wages than counties  without H-2B employers. We extended this analysis to determine whether  the results are robust to changes in labor force, employers’ usage of H-2B  workers, and industries.

To see if our results were being driven by larger population counties, we  separated counties into quartiles by labor force and compared similar- sized counties. Looking at the top quartile, we found that, similar to our  main results, counties with H-2B employers had about 0.3 percentage  point lower unemployment rate and about $120 higher average weekly  wage than counties without H-2B employers. For the bottom quartile,  counties with H-2B employers had about a 0.1 percentage point lower  unemployment rate than counties without H-2B employers, but about $34  lower average weekly wages, which we discuss further in the following  paragraph.

We next split the counties with H-2B employers by their usage of H-2B  employees to analyze the connection between intensity of employer  usage and strong labor markets. The first way we measure usage of H-2B  employees is by the number of approved H-2B petitions within the county.  When we compare the top quartile of counties by number of approved H- 2B petitions to all counties without H-2B employers, we found that they  have about 0.5 percentage point lower unemployment rates and about  $187 higher average weekly wages. We also used the ratio of approved  H-2B visas to the county’s labor force population to capture the counties’  reliance on H-2B visas. When we compare the top quartile of counties by  proportion of approved H-2B visas to labor force, we find that their  unemployment rate is about 0.1 percentage point lower and average  weekly wages about $4 higher than counties without H-2B employers.  The small difference in wages for counties with a high ratio of H-2B  workers to labor force, and the previous finding that counties with H-2B  employers in the bottom quartile by labor force have lower average  weekly wages, suggests that the difference in wages in our main finding  may be partially driven by the counties with larger labor forces.

In our final extension of our analysis, we isolated four selected industries  to compare whether the counties with H-2B employers within the  specified industry have higher average weekly wages in that industry than  counties without. In this analysis of fiscal year 2018, we found that for  each industry (construction, seafood processing, hospitality, and  landscaping) the counties with H-2B employers within the industry have  higher average weekly wages than counties without H-2B employers in  the industry. These higher average weekly wages for counties with H-2B  employers in the industry ranged from about $96 higher for seafood  processing to about $238 higher for landscaping.

Appendix III: Comments from the Department of Homeland Security

Appendix IV: Comments from the Department of Labor

Appendix V: GAO Contact and Staff Acknowledgments

Cindy Brown Barnes (202) 512-7215 or brownbarnesc@gao.gov  In addition to the individual named above, Nagla’a El-Hodiri, Assistant  Director; Lorin Obler, Analyst in Charge; Genesis Galo, Michael Naretta,  Alejandro Oliva, and Sonya Zhu made key contributions to this report.  Also contributing to this report were Amy Anderson, Susan Aschoff,  James Bennett, Kathryn Bernet, Colleen Candrl, Sherwin Chapman, Pin- En Annie Chou, Pamela Davidson, Rebecca Gambler, Joel Green, Kristy  Kennedy, Grant Mallie, Sheila R. McCoy, John Mingus, James Rebbe,  Oliver Richard, Margie Shields, Ardith Spence, Almeta Spencer, Kathleen  van Gelder, and Jessica Yutzy.

Nonimmigrant Visas: Outcomes of Applications and Changes in  Response to 2017 Executive Actions. GAO-18-608. Washington, D.C.:  August 7, 2018.

H-2A and H-2B Visa Programs: Increased Protections Needed for  Foreign Workers. GAO-15-154. Washington, D.C.: March 6, 2015.

H-2A Visa Program: Modernization and Improved Guidance Could  Reduce Employer Application Burden. GAO-12-706. Washington, D.C.:  September 12, 2012.

H-1B Visa Program: Reforms Are Needed to Minimize the Risks and  Costs of Current Program. GAO-11-26. Washington, D.C.: January 14,  2011.

H-2B Visa Program: Closed Civil and Criminal Cases Illustrate Instances  of H-2B Workers Being Targets of Fraud and Abuse. GAO-10-1053.  Washington, D.C.: September 30, 2010.

H-1B Visa Program: Labor Could Improve Its Oversight and Increase  Information Sharing with Homeland Security. GAO-06-720. Washington,  D.C.: June 22, 2006.

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.