The Corner

No Facts, Please — We’re Making Immigration Policy

The Senate immigration subcommittee is holding a hearing Wednesday afternoon on the H-2B foreign worker program. That visa is for unskilled seasonal non-farm work; it’s used to import workers for, among others, landscaping, forestry, construction, hotels, fish-processing, restaurants – and resorts like Trump’s Mar-a-Lago. (For more background, see here and here.) It’s a scam and should be abolished, but that’s for another day – it’s numbers I wanted to talk about now.

Unlike the H-2A visa for farmworkers, which is unlimited, the H-2B visa has a cap of 66,000 per year (though “fish roe processors, fish roe technicians and/or supervisors of fish roe processing” are not subject to the limit – no money changed hands to slip that into the U.S. Code, nosiree).

The employers importing this cheap labor want more of it – preferably an unlimited number. But they can’t get an increase through Congress, so their lobbyists hit upon a weird trick: preserve the nominal cap, but exempt any foreign worker who’d come in the prior three years. The House leadership slipped such an exemption for one year into the omnibus funding bill in December.

This “returning workers” loophole would potentially quadruple the annual number admitted, though as a practical matter it’s more likely to have doubled it. But in his defense of the H-2B increase, Speaker Ryan claimed only 8,000 additional foreign workers would be admitted because of the change.

So which is it? With members in the House and Senate already starting a push to renew this statistical trick for the coming fiscal year, the size of the increase this year would seem to be the obligatory starting point of any debate. There are no government witnesses scheduled for today’s Senate hearing on the program, so while the witnesses will provide useful information, the senators will likely not learn how many people are benefiting from the loophole. I’m reasonably confident in making that prediction because I recently asked both the DHS Office of Immigration Statistics and the State Department’s Visa Office for any numbers on this subject.

They said they have no idea. And I believe them.

The e-mail from the DHS stats office pleaded poverty:

Unfortunately, OIS has been behind on its statistical reporting due to extremely low staff numbers until recently.  Data through Fiscal Year 2014 has been posted on the DHS/OIS website.  Fiscal Year 2015 data will be available this summer at the earliest.

And a State Department official wrote that “We are no longer using a separate visa designation for returning workers.”

While I have no doubt that the Obama administration and congressional leaders of both parties would love to suppress this information if they could, they don’t need to – it’s actually quite plausible that no one knows. An example of why I think it’s plausible: When I was researching my 2008 book, I called the DHS stats office to get the number of “commuter green cards,” an arcane thing that isn’t published anywhere. The director was a straight shooter so I believed him when he said something to the effect of “If you find out, let me know, because I have no idea and no way of finding out.”

There’s simply no excuse for this sort of thing. We’re not talking about survey data or economic modeling, which can be ambiguous or subject to varying interpretations. This is administrative data about the government’s own activities. If the executive branch can’t tell the legislature how many H-2B “returning” workers have squeezed through the loophole this year, there’s no justification for even debating a renewal of the loophole.


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