Extra H-2B Visas Now Available for Summer Employment

​Employers in the U.S. may now apply for the recently released 35,000 H-2B visas made available for seasonal foreign guest workers this summer. The additional visas are for those starting work through Sept. 30.

Of the 35,000 visas, 23,500 will be available to returning H-2B workers and 11,500 will be reserved for nationals of El Salvador, Guatemala, Haiti and Honduras, regardless of whether they are H-2B returning workers. Returning workers are those who received an H-2B visa, or were otherwise granted H-2B status, during one of the last three fiscal years.

The H-2B guest-worker program, capped annually at 66,000 visas split evenly between the fall/winter and spring/summer seasons, is relied upon by the landscaping, hospitality and construction industries, among others. The H-2B cap for the second half of fiscal year 2022 was reached on Feb. 25.

"These additional H-2B visas will help employers meet the demand for seasonal workers at this most critical time, when there is a serious labor shortage," said Department of Homeland Security Secretary Alejandro Mayorkas.

Jessica Feinstein, an attorney in the Omaha, Neb., office of Jackson Lewis, said the additional visas "should please some businesses, such as hotels, restaurants and other service providers in summer tourist areas. However, last year, despite the additional allocation, all the extra visas were snatched up quickly, except for a few left over from the Northern Triangle [El Salvador, Guatemala and Honduras] allocation."

Tim Hygh, executive director for the Mackinac Island Tourism Bureau in Michigan, said the businesses of Mackinac Island are grateful for the release of the additional visas to boost the regional economy.

Hygh said he still expects disappointed employers and challenges to visa distribution. "There are approximately 100,000 [Department of Labor]-certified requests fighting over these additional 35,000 supplemental visas, so while this is a much-needed step forward, there are still over 60,000 proven requests that will go unanswered," he said.

How to File

Employers seeking H-2B workers must test the U.S. labor market and certify in their petitions that there are not enough U.S. workers who are able, willing, qualified and available for the offered positions, and that employing H-2B workers will not adversely affect the wages and working conditions of similarly employed U.S. workers.

Businesses seeking new H-2B workers will need to engage in additional recruitment efforts, said Loan Huynh, an immigration attorney in the Minneapolis office of Fredrikson and Byron. Some of these actions include placing a new job order with the relevant State Workforce Agency for at least 15 calendar days; contacting the nearest American Job Center; and contacting former U.S. workers to solicit their interest in the jobs.

As with prior supplemental visa increases, employers will be required to attest and document that their business is at risk of irreparable harm without the additional workers.

"Recognizing the importance of strong worker protections, we will apply greater scrutiny to those employers who have a record of violating obligations to their workers and the H-2B program," Mayorkas said.

Huynh added that employers will be able to hire workers who are already present in the United States in H-2B status without waiting for approval of the new petition, subject to certain conditions.