For months, Sens. Susan Collins, R-Maine, and Lisa Murkowski, R-Alaska, have been pushing the Trump administration to expand the number of foreign guest-worker visas issued to help businesses in their states prepare for their summer peak. The two senators are also considered crucial votes on the health care bill currently floundering in Congress.
So career staff at the Departments of Labor and Homeland Security took note last week when senior political officials ordered them to immediately draft a rule that would increase the number of H-2B visas, specifically mentioning innkeepers and fisheries in Maine and Alaska, according to three people with knowledge of the discussions.
Paul Ray, counselor to Labor Secretary Alexander Acosta, has been pressing staffers inside the agency for a rule to come out as early as this week, the sources said. While no one in political leadership invoked the health care bill specifically, they said, the sudden urgency and apparent desire to tailor the rule to specific states has drawn concern.
Career staffers have bristled at being told to find the data to justify the rule, the sources said, and have raised questions about whether a regulation benefiting specific industries over others would hold up in a court.
As a result of the pushback, some of the specific details have been scaled back and the latest draft would target a broader set of industries that experience a late summer spike and, as a result, missed out on the first round of visas earlier this year. In addition to certifying they've attempted to hire American workers, businesses would also have to attest that they would likely fail or suffer serious financial harm without hiring guest workers.
As an interim final rule, what's being drafted would take effect immediately without the long period of public comment that usually precedes new regulations.
A Labor Department spokesman referred questions about the rule to DHS, which declined to comment on whether there was any connection between the timing of the work and the health care bill.
"The administration and the department are committed to protecting American jobs and U.S. workers," DHS spokeswoman Joanne Talbot said in a statement. "DHS is only seeking to provide visas to truly seasonal industries that would be severely/significantly harmed by not receiving H-2B visas, which would adversely impact U.S. workers employed by these seasonal businesses."
Staff for Murkowski didn't immediately respond to requests for comment. A spokeswoman for Collins said, "There is no link — and there has been no attempt to link — this issue with the health care bill."
On Monday evening, Collins said she wouldn't support the health care bill as currently written. And on Tuesday, Collins and Murkowksi were part of a group of Republican senators who met with President Trump at the White House to discuss health care.
The H-2B issue has been politically incendiary for years. Even as Trump made promoting American workers the centerpiece of his presidential campaign last year, he has secured H-2B visas for foreign guest workers to serve as waiters and cooks at his Mar-a-Lago resort.
At an appropriations hearing last month, Murkowski pressed Secretary of Homeland Security John Kelly on the importance of the visas for Alaska.
"For most of these communities, for most of these regions, if there is no one to process the seafood when it comes in, there is no place for the boats to deliver," she said. "If the boats can't deliver, there is no economy to that community at all."
Kelly responded: "This is one of those things that I really wish I didn't have any discretion. And for every senator or congressman that has your view, I have another one that says, 'Don't you dare. This about American jobs.'"
The issue came to a head in January when the agency in charge of administering the H-2B program received more than 80,000 applications for 33,000 slots available during the first half of the year. In previous years, that quota had not been filled until March. In the face of increasing demand, Congress had allowed additional workers who had received H-2B visas in the past to return without counting against the quota. But Congress failed to renew that measure this year, significantly reducing the net amount of visas available for the full year.
In March, a bipartisan group of senators sent a letter to Kelly expressing concern that the cap had been reached, freezing out many employers with a need for labor in the late spring and summer.
"In recent weeks, numerous businesses across the United States have contacted our offices expressing concern that the H-2B statutory cap will be reached soon," the senators wrote. "As a result, small and seasonal businesses across the country, such as seafood processors and other critical hospitality and service businesses that are vital to the local economies in our states will be locked out of a necessary program that they rely on during their busiest seasons."
For example, Maine businesses were awarded 2,500 visas last year, but received only 700 this year before the cap was hit, said Julie Rabinowitz, director of policy, operations and communication for the Maine Department of Labor.
In response to heavy lobbying, in early May, Congress included a provision in a government spending bill giving DHS the authority to roughly double the number of available H-2B visas if it decided that "the needs of American businesses cannot be satisfied in fiscal year 2017 with United States workers."
But there was little movement, as senators continued to push for help — until last Wednesday, when DHS announced it would expand the number of seasonal worker visas available this summer. Politico reported the visas wouldn't be available until at least late July and would only be a fraction of the amount authorized by Congress.
If the Trump administration does issue a rule tailored to certain industries or areas of the country, experts believe it could be vulnerable to legal challenge.
"I wouldn't be surprised if industry groups sued to open up any increase in visas to other occupations and the rest of the country," said Daniel Costa, director of immigration law at the labor-oriented Economic Policy Institute and a critic of the H-2B program.
Laurie Flanagan, who co-chairs the industry-backed H-2B Workforce Coalition, echoed that sentiment. "It's not appropriate to pick and choose [which state or industry] should be winners and losers," she said. "Any seasonal business that meets the criteria, they should be able to hire those H-2B workers up to the cap."
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