Nonimmigrant Visas/The Future Flow
A nonimmigrant is foreign national legally in the United States for a specific purpose, such as tourism, business, studies, seasonal work, or specialty work. A nonimmigrant may only stay for a set, temporary period of time.
The H-2B visa is used for temporary, non-agricultural seasonal/intermittent workers. The H-2B visa is vital to America’s small businesses and thus to America’s economic recovery. H-2Bs are capped at 66,000 visas per year, equally split between the winter and summer seasons. This is the same arbitrary number set by Congress over 20 years ago, in 1990. The H-2B is the only way for small business owners to legally hire workers for temporary and seasonal positions when they cannot find American workers to hire. Small and seasonal businesses have every incentive to hire any qualified American who applies for a seasonal or temporary short-term position. Nevertheless, even in this economy, positions remain unfilled, leaving these businesses desperately in need of workers. This is not surprising, as these jobs typically involve low-skilled and semi-skilled labor, work at remote locations, and are only short-term in duration. A proposed solution to reform the H-2B program includes reauthorizing a provision that allows workers returning to an employer for whom they had worked during the previous season to not be counted against the annual 66,000 visa cap.
The H-1B enables U.S. employers to hire, on a temporary basis, highly educated foreign professionals for “specialty occupation” jobs that require at least a bachelor’s degree or the equivalent in the field of specialty. U.S. businesses turn to H-1B workers to alleviate temporary shortages of U.S. professionals in specific occupations, and/or to acquire special expertise in overseas economic trends and issues. This is an important aspect of ensuring that U.S. businesses remain competitive in global markets. Prior to the global economic downturn that started around 2007, U.S. businesses would almost immediately apply for every single H-1B visa available for that year. However, recent trends indicate that during economic downturns, U.S. business demand for highly skilled workers is lower than during times of prosperity. One immediate solution for the H-1B visa category would be to exempt U.S.-educated workers with advanced degrees from the H-1B cap. Another solution would be to amend the law to allow unused H-1B visas from previous fiscal years to be reclaimed in future years. Current law allocates a fixed number of H-1B visas each year, but visas that are not used due to administrative processing delays, are lost and cannot be used in future years. The H-1B category could be improved by permitting work authorization for spouses of H-1B visa holders who are forbidden under current law to work while in the United States. Finally, since businesses that need H-1B workers are oftentimes medium and small businesses, any new proposal must be scaled in a way to ensure that the cost of going through the H-1B process does not become unduly burdensome on these businesses.
The Future Flow
In the current debate over immigration reform, those with more restrictive views of immigration policies say that we should not bring any new foreign workers into the United States. However, the demand for foreign workers reflects the market demands and needs in our economy. Immigration reforms must include a system for new legal work visas that is flexible enough to meet the needs of the economy and provide American businesses with access to essential workers in the U.S. The system must also protect workers’ rights, guarantee fair wages and working conditions, and provide workers with a means to apply for green cards if they choose to do so. The number of temporary non-immigrant visas for less-skilled workers in seasonal and non-agricultural occupations, the H-2B visa is capped at 66,000 per year. For temporary agricultural workers there is the H-2A visa, but this program is too bogged down in bureaucracy and is not responsive to the constantly changing labor demands in the agriculture industry. In addition to the H-2B and H-2A non-immigrant visa, 5,000 permanent employment-based green cards are allotted each year to workers (and their immediate families) in less-skilled jobs. Taken together, these very limited numbers comprise the annual allotment of workers in the less-skilled or “essential worker” category.