December 31, 2020 3:44PM

Trump Banned Many H-2B Workers But No More U.S. Workers Applied—Now He May Extend the Ban

The H-2B program allows nonagricultural employers to hire foreign workers when they cannot find U.S. workers to perform temporary jobs. Since 2014, employers have repeatedly hit the H-2B cap of 66,000 visas, so Congress has repeatedly authorized the Department of Homeland Security (DHS) to permit workers to enter above the cap. DHS refused to allow any additional workers to enter above the cap after the unemployment rate spiked in March.

In June, President Trump went even further by banning many H-2B workers until the end of this year, which caused visas under the cap to be wasted. Now Trump is considering extending the H-2B ban into 2021. This is a bad idea. The ban was supposed to free up jobs for U.S. workers, but government data show that almost no U.S. workers applied for H-2B jobs, despite the spike in unemployment.

As I pointed out at the time, it made no sense to ban H-2B workers because every H-2B job must be offered to U.S. workers first. The Department of Labor (DOL) oversees U.S. worker recruitment under the H-2B program, and it will not certify an employer to hire H-2B workers unless it determines that there “are not sufficient U.S. workers who are qualified and who will be available” for the job.

Starting 90 days prior to the job start date, DOL requires that employers request that State Workforce Agencies refer U.S. workers (including those on unemployment insurance) to them. DOL advertises the job on an online site. All jobs must pay an inflated wage—known as the prevailing wage. Within two weeks of applying, employers must also contact former employees and ask them to return for the job. The employer can only stop accepting applicants 20 days before the date of need—after roughly two months of recruitment.

After 15 days of posting the job offer at the job site—a requirement that DOL changed to 30 days during the pandemic—employers will submit proof in a recruitment report that they fulfilled all the requirements. Despite the increased recruitment requirements, President Trump’s H-2B ban, general COVID-19 travel restrictions, and massive increase in unemployment, very few U.S. workers applied for H-2B jobs.

Figure 1 shows the percentage of H-2B job requests that DOL certified as unfilled by U.S. workers. Fiscal year 2020 (from October 2019 to September 2020) saw the highest rate of H-2B jobs certified as unfilled by U.S. workers of any year on record. U.S. workers simply did not apply for H-2B jobs in 2020. In fact, the unemployment rate appears to have no effect on the rate of approvals at all, implying that employers only go through the certification process when they are highly confident that U.S. workers really are not available. 

Figure 2 shows the unemployment rate and the certification rate for just the second half of the fiscal year (April to September), which in the case of FY 2020 was when unemployment spiked. Again, it shows that very few U.S. workers applied for H-2B jobs and that there was a slight increase in the certification rate in the second half of FY 2020 compared the second half of FY 2019, despite unemployment more than doubling.

While there are many H-2B occupations, the top three in 2020 were landscapers (46 percent of certified jobs), forestry workers (7 percent), and meat and seafood cutters and trimmers (7 percent). Among the top three industry-occupation combinations, the certification rate was even higher: 96-98 percent. It is important to note that there are other reasons why a job could not be certified other than the job being filled by a U.S. worker.

Table 2 shows H-2B jobs in 2019 as a share of all jobs in May 2019. This isn’t a perfect comparison, but it is the best we have to contextualize the importance of H-2B workers. For forestry and seafood processing, H-2B workers absolutely dominate those categories in a way that leads to the conclusion that U.S. workers only very rarely take those positions. These shares are even higher in some parts of the country (like Maryland seafood). But for landscaping, almost 90 percent of the industry’s landscapers are not H-2B workers, implying that there is a U.S. workforce in at least some places in the United States (though this U.S. workforce includes many illegal workers).

So why are almost all H-2B landscaping jobs going unfilled despite aggressive recruitment? The main answer is that employers do not engage with the expensive H-2B process if they are not certain that the local labor market has already been exhausted. It would not be worth their effort to hire H-2B workers at higher wages and greater costs unless they were sure that it was there only option. In 2020, like past years, it was the only option.

U.S. workers simply will not relocate to work in tough manual labor positions when they are temporary. Very few Americans are looking for temporary employment anyway. But during the pandemic, they had even less reason to seek it out because they were being assured that the market would quickly recover; they were being told to stay home to avoid spreading COVID-19; they were being paid such inflated benefits by the government that incomes actually rose despite fewer people working, so U.S. workers could afford to wait for their ideal job to return.

President Trump should not extend the H-2B visa ban. H-2B workers not only are not taking U.S. workers' jobs. They are creating jobs for them. By doing the jobs that U.S. workers turn down, H-2B workers increase demand for other jobs elsewhere in the economy that Americans want to fill.