Napolitano Invites More Countries To Use H-2A/H-2B Visas

Department of Homeland Security (DHS) Secretary Janet Napolitano issued a bureaucratic decree that allows additional countries to send guest workers to the U.S. by participating in the H-2A and H-2B visa programs.

Croatia, Ecuador, Ethiopia, Ireland, Lithuania, The Netherlands, Nicaragua, Norway, Serbia, Slovakia, and Uruguay are countries whose nationals are eligible to participate in the H-2A and H-2B programs.

These are the countries that are already on the fast track list for H-2A/H-2B visas:

Argentina, Australia, Belize, Brazil, Bulgaria, Canada, Chile, Costa Rica, Croatia, Dominican Republic, Ecuador, El Salvador, Ethiopia, Guatemala, Honduras, Indonesia, Ireland, Israel, Jamaica, Japan, Lithuania, Mexico, Moldova, The Netherlands, Nicaragua, New Zealand, Norway, Peru, Philippines, Poland, Romania, Serbia, Slovakia, South Africa, South Korea, Turkey, Ukraine, United Kingdom, Uruguay.

Just in case Napolitano missed a country that wants to send cheap laborers to the U.S., she included a gaping loophole that allows any country to participate — albeit employers will probably have to file a few additional forms to show why the worker they want to import is vital to the best interests of the U.S. From the Napolitano decree:

On a case-by-case basis, DHS may allow a worker from a country not on the participating country list to be eligible for the H-2A or H-2B program if such participation is in the interest of the United States.

Here are a few details on the two visas, and one other that should be cosidered:

  • H-2A: Used for farm and agricultural workers.  This category can be interpreted to mean anybody that works on farms, ranches, gardens, or anywhere else that produces farm products. The DOL defines H-2A categories as being work of a temporary or seasonal nature usually in relation to the production and/or harvesting of a crop. The most important thing to know about H-2A visas is that there is NO YEARLY CAP TO THE NUMBERS ADMITTED!
  • H-2B: These visas are used for skilled blue collar workers — like for instance welders. The numerical limit set by Congress per fiscal year is 66,000. H-2B visas can be extended for up to three years.
  • H-4: All H-2A and H-2B visa holders can get H-4 visas for spouses and unmarried children under 21 years of age. H-4 visa holders cannot get authorization to work, but they are entitled to all government services offered to citizens. If the married couple births a child while they are in the U.S. that child becomes a jackpot baby.

Napolitano`s decree will almost certainly result in an increase in the numbers of H-2A visas issued. Expect the H-2B visa cap to be reached far earlier as demand increases and when that happens the cheap labor lobby will have an excellent reason to argue that the cap must be raised.

Napolitano`s actions seem to violate the U.S. Constitution which designates Congress the responsibility of regulating  immigration ( Article 1, Section 8, U.S. Constitution  The Congress shall have Power … To establish an uniform Rule of Naturalization….”). Unfortunately the Constitution is rarely considered nowadays so Napolitano`s actions are not unprecedented. Here are two more examples of legislation by bureaucratic fiat:

  • Optional Practical Training (OPT): in 2008 Michael Chertoff made a rule change to extend the time period of OPT from 12 months to 27. The legislation by bureaucratic fiat was signed off and approved by President Bush in 2008.  Extending the visas was tantamount to a de facto H-B visa increase.
  • Trade NAFTA (TN): In 2008 Homeland Security Secretary Michael Chertoff and Department of Commerce Secretary Carlos Gutierrez made a rule change that increased the duration of the TN visa from one year to three. This rule changed messed with both international trade agreements and immigration–but there was never a whisper of complaint from Congress.