Manchin, Rounds Lead Bipartisan Effort to Protect Small Businesses from Labor Shortages

Washington, DC – Today, U.S. Senators Joe Manchin (D-WV) and Mike Rounds (R-SD) led ten bipartisan Senators in urging Department of Homeland Security (DHS) Secretary Alejandro Mayorkas and Director of U.S. Citizenship and Immigration Services (USCIS) Ur Jaddou to reconsider plans to dramatically increase the fees businesses pay for H-2A and H-2B non-immigrant work visas. These temporary visas are critical for helping small businesses across West Virginia, South Dakota and the entire United States meet consumer demand during the ongoing and severe labor shortage.

 

“We strongly support making sure our law enforcement agencies have the necessary resources to protect our borders,” the Senators said in part. “We are alarmed, however, that the fee increases will be particularly burdensome for small businesses relying on H-2A and H-2B nonimmigrant visas to meet their workforce needs. As you know, we are at a time when many in our country are suffering from a severe labor shortage and persistent inflation. It is irresponsible to so drastically increase the price to access these essential guest worker programs while doing nothing to increase their availability.”

On January 4, 2023, DHS proposed increasing application fees charged by USCIS for employment-based and other visas as a result of the agency’s staffing shortages, longer processing times and increased asylum claims. Employers currently pay a $460 petition fee when applying for an H-2A or H-2B visa for a prospective guest worker. The proposed rule would increase the petition fee to $1,080 and $1,090 for named H-2A and H-2B visa petitions, respectively. Additionally, employers would pay a new $600 fee for all petitions to support USCIS’ screening and asylum processing work. In total, employers would now pay $1,680 and $1,690 for each named H-2A and H-2B visa petition, respectively, amounting to an average increase of 266 percent.

 

“In our states and around the country, H-2A and H-2B guest workers give small businesses – such as landscapers, ski resorts, construction, forestry, agriculture, and hospitality – the ability to temporarily meet their dire labor demands… the Proposed Rule increases fees substantially, but provides no additional security that businesses will in fact be able to staff their workforces,” the Senators continued. “We urge you to reconsider the implementation of these massive fee increases for programs that are so vital to our respective states and American small businesses. We look forward to continuing to work with you to develop bipartisan, commonsense solutions to better our immigration system and grow our economy.”

 

Senators Manchin and Rounds were joined by Senators Angus King (I-ME), Mike Crapo (R-ID), Jeanne Shaheen (D-NH), James Risch (R-ID), Kyrsten Sinema (I-AZ), Mark Kelly (D-AZ), Ben Ray Luján (D-NM) and John Hickenlooper (D-CO).

Dear Secretary Mayorkas and Director Jaddou,

 

On January 4, 2023, the Department of Homeland Security (DHS) proposed increasing application fees charged by U.S. Citizenship and Immigration Services (USCIS) for employment-based and other visas as a result of the agency’s staffing shortages, longer processing times, and increased asylum claims. We strongly support making sure our law enforcement agencies have the necessary resources to protect our borders. We are alarmed, however, that the fee increases will be particularly burdensome for small businesses relying on H-2A and H-2B nonimmigrant visas to meet their workforce needs. As you know, we are at a time when many in our country are suffering from a severe labor shortage and persistent inflation. It is irresponsible to so drastically increase the price to access these essential guest worker programs while doing nothing to increase their availability. As you draft a final rule, we urge you to reconsider the dramatic proposed H-2A and H-2B visa fee hikes and make sure that we are doing everything possible to support small businesses.

 

Employers currently pay a $460 petition fee when applying for an H-2A or H-2B visa for a prospective guest worker. The Proposed Rule increases this to $1,080 and $1,090 for named H2A and H-2B visa petitions, respectively. Additionally, employers would pay a new $600 Asylum Program Fee for all petitions to support USCIS’ screening and asylum processing work. When combined, employers would now pay $1,680 and $1,690 for each named H-2A and H-2B visa petition, respectively, amounting to an average increase of 266 percent. Even without the inclusion of the new Asylum Program Fee, the changes to the H-2A and H-2B petition fee still average a 135 percent increase, exceeding historical norms. By comparison, the two most recent changes increased fees for these categories by far more modest rates. In 2010, USCIS raised the H-2A and H-2B visa petition fees from $320 to $325, a 2 percent increase. In 2016, USCIS raised the H-2A and H-2B visa petition fees from $325 to $460, a 42 percent increase. Even if businesses choose to request visas for unnamed guest workers – a new distinction created by USCIS – they would pay fees totaling between $1,130 and $1,180 for each H-2A and H-2B visa request, amounting to an average 150 percent increase.

 

Given the country’s severe labor shortage, we are concerned these proposed increases go too far for small businesses relying on H-2A and H-2B workers to operate at full capacity. According to Federal Reserve Chairman Jay Powell, the labor shortage is a key factor driving inflation: “the labor market continues to be out of balance. Labor demand substantially exceeds the supply of available workers, and the labor force participation rate has changed little from a year ago.” These nonimmigrant visa programs are essential for combatting the persistent labor shortages. In our states and around the country, H-2A and H-2B guest workers give small businesses – such as landscapers, ski resorts, construction, forestry, agriculture, and hospitality – the ability to temporarily meet their dire labor demands. These programs are incredibly limited, though: there is a finite number of H-2B visas available at any given time, and businesses frequently learn that they will not have enough labor to support their operations in peak business seasons. This Proposed Rule increases fees substantially, but provides no additional security that businesses will in fact be able to staff their workforces. During a time of economic uncertainty, this is fundamentally irresponsible, and could result in adverse effects for consumers in the form of higher prices, declines in product or service availability or quality, and exacerbating inflation.

 

These drastic visa petition fee increases are also surprising given that USCIS proposes longer processing times, which runs contrary to the Proposed Rule’s stated goals. Although premium processing fees will remain unchanged at $1,500 for H-2B petitions, USCIS proposes increasing the premium processing time from 15 calendar days to 15 business days. This will lead to a further delay in processing times, exacerbating the impact of the Department of Labor’s slow processing times. Regulations preclude employers from filing with the Department of Labor (DOL) any earlier than 90 days prior to start date. The fact that the majority of H-2B applications filed with USCIS request premium processing demonstrate the critical need for timely processing. Any delays in the process, even as little as 4 additional processing days, will have significant economic consequence for an H-2B employer. Further guidance should clarify what services will be improved in return for paying the premium processing fee and increased visa petition fees.

 

We understand that as a fee-funded agency, USCIS relies on fees to fund most of its important visa and asylum processing efforts. Under your proposed rule, H-1B petitions are not expected to see fee increases in the same manner as H-2A and H-2B petitions and we believe that one category of visas should not be isolated when USCIS is considering fee increases. Fundamentally, we are concerned that the proposed H-2A and H-2B fee increases are too large for small businesses to bear during challenging economic times. We should be supporting them with every available policy lever, not pursuing policies that will hinder their growth.

 

As DHS and USCIS finalize this rule, we urge you to reconsider the implementation of these massive fee increases for programs that are so vital to our respective states and American small businesses. We look forward to continuing to work with you to develop bipartisan, commonsense solutions to better our immigration system and grow our economy.