While there is much to criticize in the 2016 spending bill, appropriators did include one provision that will improve America’s legal immigration system. It would allow legal foreign workers (H-2Bs) who have worked legally in the U.S. in the last three years to return to work legally in 2016. This “returning-worker” provision helps prevent illegal immigration, while keeping U.S. businesses competitive internationally.
The H-2B program allows U.S. businesses that cannot find American workers to hire foreign workers in seasonal jobs that aren’t on farms. The program is intensely bureaucratic, with mounds of paperwork, lengthy waiting periods, inflexible wage calculations and time restrictions. But the H-2B visa provides the only legal way for non-agricultural employers to hire lesser-skilled foreign workers.
Despite its critical importance to seasonal industries like seafood and horticulture, the H-2B program has an artificially low quota. Unlike H-2A visas for farmers that are uncapped, no more than 66,000 visas—an average of just 1,320 per state—may be issued. As the Soviets discovered, quotas that ignore demand create labor shortages, which mean U.S. businesses must cut production or move overseas. Both hurt the U.S. economy.
The quota holds even if the same worker is returning to fill a position that he worked the last season and no American could be found again this season. This is where the spending bill helps. Section 565 exempts any worker who was lawfully admitted as an H-2B worker from 2013 to 2015 from the 2016 limit. The last time this was permitted in 2007, the number of H-2Bs doubled.
As I’ve pointed out in the past, the H-2 category is important in preventing illegal immigration. As I’ve detailed before, less than 3 percent of H-2 guest workers overstayed their visas since 1990, and inviting back workers who have proven their willingness to return after they stay would only force this number down.
At the same time, providing legal avenue for entry for these workers—90 percent of whom are from Mexico—managed to cut Mexican illegal immigration over the last decade. Since 1995, the number of H-2 admissions has increased by nearly twelvefold from less than 26,000 entries to almost 300,000 in 2013 (the most recent year DHS has released). At the same time, the number of illegal entries by Mexicans has plummeted by fivefold from about 1.3 million in 1995 to just over 265,000 in 2013.
Some of the fluctuation in illegal entries is certainly economic, but the number started falling before the recession in 2008 and has remained low. Other analyses have demonstrated that there is a tradeoff between legal entries and illegal ones. The more legal immigration is encouraged, the fewer attempt to come legally.
But proponents of illegal immigration—meaning those who want to make immigration illegal—argue that the H-2 program is unnecessary because there are enough Americans willing to perform any job. But the reality is that the pool of lesser-skilled workers has been shrinking for decades.
Despite the rise of illegal immigration, the number of American adults without a high school degree shrunk by 400 percent from 1980 to 2013. Meanwhile, Americans with a college degree grew 3 times faster than during the earlier 1948 to 1980 period. American businesses are competing for a smaller and smaller number of manual laborers. That’s why some industries recruit immigrants.
The Virginia Institute of Marine Science estimated in 2011 that “70% of seafood processing in Virginia arises from the availability and productivity of the H2-B labor workforce.” Economists at the American Enterprise Institute found in 2011 that “adding 100 H-2B workers results in an additional 464 jobs for U.S. natives.” It does this primarily by creating complementary jobs for higher-skilled natives.
Proponents of illegalizing immigration should see that illegal immigration is actual much worse for American workers. When immigrants aren’t legal, they cannot assert their rights. While the H-2B has some problems–most importantly that H-2Bs can’t leave their employer to find a better one–it is better than illegal immigration.
The omnibus is not uniformly positive for the legal immigration system. It taxes some H-1B and L-1 high-skilled visas, for example, and much more must be done to fix a broken system. But until a broader reform bill is proposed, the returning worker exemption is a welcome reform for a system that desperately needs improvement.