In a break from immigration policy trends that have dominated Donald Trump’s presidency, his administration announced Monday that it would give out 15,000 more temporary work visas for 2017 than the program’s cap.

The H-2B program, which is for U.S. businesses to hire temporary non-agricultural workers on a seasonal or intermittent basis, normally has a Congressionally-set cap of 66,000 per year. Homeland Security Secretary John Kelly said the 23 percent increase, which he is allowed to make under immigration law, would be a one-time decision intended to show the administration’s support of American business.

Local businesses who haven’t been able to find American hires were hopeful that they would be able to bring in employees through the program.


Those who have supported the administration’s immigration policies were quick to criticize the move as a betrayal of “America first” promises by Trump, by bringing in foreign workers. Trump has spoken many times about protecting American workers from job-theft through temporary work visa programs, and he signed an executive order establishing a policy of hiring American, rather than foreign, workers.

In a final rule filed jointly by the Department of Homeland Security and the Department of Labor that will be published to the Federal Register on Wednesday, the departments reasoned that the harm that some businesses face if they don’t find workers is greater than the harm American workers could face if someone participates in the program fraudulently. Businesses who wish to take advantage of the additional visas must demonstrate that they would experience “irreparable harm” if they are not able to hire temporary foreign labor.

Peter Nunez, former U.S. attorney in San Diego, called the administration’s announcement very disappointing.

“With many millions of Americans out of work, it is difficult to accept the notion that employers cannot find temporary non-agricultural workers,” Nunez said via email. “What they want is workers who they can hire as cheaply as possible, so if they can hire a foreign worker at a cheaper wage than hiring an American, that’s what they want. If they really wanted to hire Americans for these jobs, they should raise the pay rate to whatever the market requires for them to find willing workers.”


He said the move was likely a compromise to placate pro-business Republicans.

“Many of those who voted for Trump because of his appeal to the working class Americans should be outraged at this development,” Nunez said.

Nunez also chairs the conservative Center for Immigration Studies, which pushes for lower levels of immigration. Jessica Vaughan, director of policy studies at the center, also disapproved of lifting the cap.

“The Trump administration should be thinking about how to get these employers to hire some of the hundreds of thousands of unemployed teenagers, seniors or others looking for entry-level work,” Vaughan said via email. “There’s no such thing as a job Americans won’t do, and we have many legal immigrants who could take these jobs too.”


She worried that the departments would not investigate claims of potential irreparable harm closely enough and that at least some of the additional workers would overstay their visas, becoming unauthorized immigrants.

Nationwide, the largest share of H-2B visas go to the landscaping industry, according to data from the Department of Labor. Industries such as forestry, tourism, fairs and construction also find workers through the visa.

Mike Osborne, whose San Diego-based pumpkin and Christmas tree business relies on H-2B visa workers during its busy months, said he wasn’t able to get the 12 visas he requested this year because the cap had already been reached.

“I honestly don’t know how I would do it without them because there’s no possible way that I can find people that would do the work,” Osborne said over the phone. “It’s a difficult spot for us to be in.”


He has trouble finding Americans willing to do the work, Osborne said, because the job is temporary and involves intense manual labor.

“People won’t commit to you over the long term,” Osborne said. “The’re not going to say, ‘Yeah, I’ll be there for three straight weeks for five or six days and work all these hours and not have a job as of Jan. 1.’”

He said the Department of Labor requires businesses to pay a prevailing wage to H-2B employees.

“It’s definitely not minimum wage, I can promise you that,” Osborne said.


His application for 2017 said he would pay the employees just over $14 per hour.

Lisa Galliath, an immigration attorney in Carlsbad who specializes in serving the equestrian industry, said her clients had all managed to get visas allocated to them this year before the cap was reached. Other years, she said, that hasn’t been the case.

“There’s just not enough to go around usually,” Galliath said.

Requests for H-2B visas have gone past the cap for the last three years, according to U.S. Immigration and Citizenship Services.


Isabel Marocco, chief financial officer and vice-president of Casper Company and incoming president of the National Association of Women in Construction, said San Diego construction companies are facing a workforce shortage.

She hasn’t used H-2B visas in the past, but is eager to try anything that might keep her company from having to turn projects away due to lack of labor.

“This will definitely be a benefit for us,” Marocco said by phone. “We feel like we’ve exhausted everything possible here.”

She said the generation entering the workforce is not interested in the kind of manual labor required in her industry.


“You can make a really good living in construction,” Marocco said. “It’s just not their cup of tea.”

Applications can clear the way for one or more visas for the same role.

At nine applications, San Diego County has the fourth highest number so far in 2017 of any county in California, according to Department of Labor data. Riverside is the highest at 22.

Five of the nine applications submitted for work in San Diego County were for food workers at the fair. One was for a soccer coach, and one was for a nursery worker. Osborne’s pumpkin and Christmas tree workers request was one of the applications, and the ninth was for a horse show groom submitted by Galliath.


The additional visas will be available through the end of September, when the fiscal year ends.


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