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Too Much Demand, Not Enough H-2B Visas

Congress created the H-2B visa program in 1990 in order to help non-farm businesses acquire seasonal workers. As acceptance of the program grew, so did the competition for visas. In 2014, most H-2B workers came from Mexico, being hired primarily by employers in Texas.

Each year, there are 66,000 visas available for businesses  half (33,000) of the H-2B visas are available during the first half of each fiscal year – start date October 1; the second half are made available during the second half of the year – start date of April 1.  Due to increased demand, in July 2017 the Department of Homeland Security increased the second half cap by 15,000.

The demand for seasonal workers has been steadily increasing.  By February 27, 2018, U.S. Citizenship and Immigration Services (USCIS) had received enough H-2B petitions to fill the second-half cap. This high amount of applications was unprecedented. As a result, on May 31, 2018, DHS and the Department of Labor (DOL) published a temporary final rule that increased the H-2B visa limit by an additional 15,000 visas.  CIS received enough visa requests in the first 5 days of filing and conducted a lottery, leaving many employers without the help they needed.

Fewer Exemptions to the Cap

The high influx in H-2B visa applications is compounded by the applications of returning and recurring temporary workers. Before, temporary and seasonal workers who had entered the U.S. previously on an H-2B visa did not count toward the 66,000 visa cap. Now, these workers do count. Since many more petitions have come in than the NUMBER of available visas, DOL has filled the visa cap by using a randomized lottery.

Exemptions to the H-2B visa cap are still available. These include:

  • Workers who were previously counted against the cap in the same fiscal year and whose stays are extended, or whose employers or terms and conditions of employment have changed
  • H-4 immigrants (dependent spouses and children of H-2B workers)
  • Workers in the fish roe processing industry
  • Workers performing labor or services in the Commonwealth of Northern Mariana Islands or Guam from Nov. 28, 2009 until December 31, 2019.

Impact on Businesses

DHS ruled that American companies were being irreparably harmed by not being able to hire enough American workers to fill seasonal jobs. Landscaping, seafood processing, hotels, ski resorts, and other maid/hospitality industries have been the most affected by worker shortages. Other temporary worker programs, such as the H-2A program for seasonal farm workers, and the H-1B program for professional workers, have not yet had their annual caps increased.

How Businesses Obtain Guest Workers

To qualify for H-2B nonimmigrant classification, the business petitioning for foreign temporary workers must establish that:

  • There are not enough U.S. workers who are able, willing, qualified, and available to do the temporary work.
  • Employing H-2B workers will not adversely affect the wages and working conditions of similarly employed U.S. workers.
  • Its need for the prospective worker’s services or labor is not permanent; it is due to seasonal need, peak workload, or temporary need; or otherwise that the business only needs to hire workers occasionally.

Visas can be extended a year at a time, and maximum visa stay limit is three years.

Is the H-2B Program Needed?

Critics of the H-2B program argue that companies use H-2B workers in order to use cheap foreign labor, pointing to certain companies’ fraudulent hiring practices that undercut wages and opportunities for American job-seekers. In addition, some companies were found to abuse their H-2B workers by refusing to pay their wages, forcing them into debt, threatening deportation, and otherwise violating program rules.

The process of hiring a temporary worker is a lengthy and complicated one, which requires a lot of back and forth between the prospective employer and the Department of Labor in order to gain permission to hire foreign workers, as well as a lengthy application and background checks required for each prospective worker. Adding to the wait time is the lack of available visas. Our employment immigration lawyers at Pollack, Pollack, Isaac & DeCicco, LLP, have the knowledge and experience necessary to streamline this process, help you find other visas you might qualify for, and be a compassionate resource in the event of immigrant program violations.

Call our law offices at 212-203-4795 or contact us online today.


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