GOP Lawmakers Look To Protect H-2B Visas During Pandemic

By Joyce Hanson
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Law360 (May 27, 2020, 8:27 PM EDT) -- Republican lawmakers have urged President Donald Trump to shield H-2B nonimmigrant visas from any upcoming immigration restrictions as part of his response to the COVID-19 pandemic, saying temporary guest workers are essential to companies that depend on seasonal labor.

Few U.S. workers are seeking seasonal temporary jobs despite the high rate of coronavirus-related layoffs because the vast majority of those who were laid off expect to be rehired by their previous employer when state stay-at-home orders are lifted, according to a letter sent to Trump on Tuesday by 42 Republicans in the U.S. House of Representatives.

The lawmakers lobbied Trump to maintain the continued operation of the H-2B program so long as any employer with access to it receives certification and meets a statutory cap limiting the number who get a visa.

"It is important that the H-2B program continue to be available to our seasonal employers as a fail-safe in the event that we see a rapid drop in unemployment and a return to the extremely tight labor markets of just a few months ago," according to the lawmakers.

Rep. Andy Harris of Maryland, formerly a physician at The Johns Hopkins Hospital, led the lawmakers who wrote the letter, telling Law360 on Wednesday that employers depend on H-2B workers but the visas are hard to come by. Roughly three times more visas have been applied for than given this year, with only 33,000 available for 100,000 applications, he said.

"In my district, we have seafood processing and the tourism industry," Harris said. "H-2B workers do jobs that American workers simply don't do. The businesses certainly advertise for the jobs and pay more than minimum wage, but they simply can't attract the workers. To be honest, these are seasonal jobs, and the goal for American workers is to get full-time jobs."

On Wednesday, a group of U.S. Senate Republicans sent Trump a similar letter, with nine senators, including Lindsey Graham of South Carolina, asking the president not to suspend any H-2B visas, among other measures.

"As we begin to reopen and recover, we ask you cautiously approach any changes to our nonimmigrant guest worker programs," the senators wrote.

Trump said in April that his administration will review nonimmigration visa programs and temporarily bar certain green card seekers from entering the U.S. He signed a proclamation on April 22 to prevent foreigners abroad from coming into the country, saying his order aims to protect U.S. workers who lost their jobs as a result of the coronavirus pandemic.

Since then, anti-immigration and pro-business Republicans have split on whether to ban guest workers as part of Trump's efforts to limit immigration.

On May 7, four influential Senate Republicans — Tom Cotton of Arkansas, Ted Cruz of Texas, Chuck Grassley of Iowa and Josh Hawley of Missouri — asked the president to broaden his actions to limit immigration during the public health emergency and impose a long-term suspension of guest worker visas as well as EB-5 immigrant investor visas.

Citing a desire to reserve jobs for Americans during the pandemic-induced economic crisis, the group called for the administration to suspend all nonimmigrant guest worker visas for 60 days except in "time-sensitive industries such as agriculture," with some categories stopped for at least a year or until unemployment returns to normal levels. The targeted visas include H-2B nonagricultural seasonal workers and H1-B specialty occupation workers.

But trade associations of the H-2B Workforce Coalition collectively representing hundreds of American businesses have gone in the other direction, pressing Trump on May 15 to protect the seasonal H-2B visa program that covers workers who perform temporary nonagricultural labor essential to the U.S. food supply chain, such as manufacturing and restaurant jobs. They told the president that shutting out guest workers will wreak havoc on seasonal industries and paradoxically cripple their ability to employ American citizens by jeopardizing the continued employment of full-time U.S. workers in seasonal sectors.

Now, the coalition's efforts to reach out to members of Congress has resulted in the letter the 42 House Republicans sent to Trump, which speaks of the struggles of thousands of small and seasonal businesses nationwide to survive in the current and unprecedented economic climate.

These businesses want to hire willing and able American workers before resorting to guest workers to meet their labor needs, according to the letter. But there are many instances where supplemental H-2B workers are still needed due to customer demand, geography and seasonal work, the lawmakers said.

"Should any recommendation pursuant to the proclamation include restrictions on the already heavily regulated H-2B visa program, such actions run the risk of harming American businesses as well as undermining the continued job security of full time U.S. workers in seasonal sectors," the letter said. "From a broader perspective, it is likely that additional restrictions on the H-2B program will unnecessarily hinder ongoing economic recovery efforts across the country."

--Additional reporting by Alyssa Aquino, Andrew Kragie and Suzanne Monyak. Editing by Orlando Lorenzo.

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