The H-2B visa program enables U.S. employers to fill temporary nonagricultural jobs with foreign nationals. However, the petitioning employer must meet specific regulatory requirements. To qualify, the petitioner must show that:
- There are not enough U.S. workers who are able, willing, qualified and available to fill the temporary positions;
- Employing the H-2B workers will not adversely affect the wages and working conditions of similarly employed U.S. workers; and
- Its need for the labor is temporary. An employer’s need is considered temporary if it is a one-time occurrence (i.e., seasonal, peak load or intermittent).
The H-2B visa category is utilized by important sectors of the U.S. economy to address industry-specific labor shortages. The problem, however, is that the total number of visas available during any given fiscal year is capped at 66,000. When that number is reached, shrimp boats in the south are forced to dock, the Alaskan salmon industry tanks and seasonal resorts around the country are forced to close their doors early. Even President Trump’s Mar-a-Lago Resort relies on the H-2B program to fill temporary positions like waiters, servers, cooks, housekeepers and landscapers during peak months.
The historical trend of this issue has previously been addressed by Congress. In 2016, returning H-2B workers were exempt from the annual cap. Although minimal, the “returning worker provision” provided struggling businesses with some form of relief. Congress, however, did not renew the returning worker exemption for fiscal year 2017, and the cap was reached within weeks of the visas becoming available. Business owners waited nearly four months before Congress passed the torch to the Department of Homeland Security (DHS). DHS was authorized to increase the number of H-2B visas after consultation with the Department of Labor (DOL) and issue up to an additional 70,000, of which 15,000 were ultimately issued. For many, the relief came too late as employers needed these workers in mid-April, but for others, this was a critical life line meeting desperate labor needs.
An H-2B visa is not an easy way for employers to hire immigrants over U.S. workers. In reality, it costs them more. It makes sense to hire American, rather than pay recruitment fees, pay a foreign national the appropriate wage (which is the higher of the minimum wage or the mean wage issued by the DOL), pay for all the visa fees, and then pay for transportation costs to and from the worksite. What employer would voluntarily undertake the expenses and obligations of the H-2B program if they could avoid it? If American workers were available to fill these positions, there is no doubt employers would hire them.
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