DHS Releases Extra Seasonal Visas This Winter

Travel ban on unvaccinated individuals could stifle inflow of workers

Roy Maurer By Roy Maurer December 23, 2021
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ski resort worker

​The Department of Homeland Security (DHS) announced Dec. 20 that an additional 20,000 H-2B visas will be available for employers seeking seasonal foreign guest workers this winter.

It's the first time extra visas have been issued for the winter months, and the news comes as a relief to hotels, ski resorts, outdoor amusement employers and the Alaskan seafood industry.

The visas are being made available in addition to 33,000 visas already set aside for the fall/winter hiring season, which ends March 31.

The supplemental H-2B visa allocation consists of 13,500 visas available to returning workers who received an H-2B visa, or were otherwise granted H-2B status, during one of the last three fiscal years. The remaining 6,500 visas, which are exempt from the returning-worker requirement, are reserved for workers from Haiti and the Northern Triangle countries of El Salvador, Guatemala and Honduras, in support of President Joe Biden's efforts to address an unauthorized migration surge from those countries.

Haitian nationals were only recently admitted back to the guest visa program following a three-year break after the Trump administration banned them, alleging that they often overstayed or abused their work authorizations.

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, seafood and construction industries, among others. This marks the fifth year in a row that the DHS has released additional H-2B visas in response to pressure from seasonal employers and lawmakers.

The DHS is expected to soon publish a temporary rule outlining filing procedures for the additional H-2B visas. Petitioners are expected to be required to submit Form I-129, a valid temporary labor certification approved by the Department of Labor and an attestation that their business is at risk of irreparable harm without the additional workers. Employers will also likely 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.

Employers seeking H-2B workers must first test the U.S. labor market and certify in their petitions that there are not enough U.S. workers who are able, willing 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.

Notably, DHS also indicated that the department is planning broader rulemaking to reform the H-2B program. "In the coming months, DHS will seek to implement policies that will make the H-2B program even more responsive to the needs of our economy, while protecting the rights of both U.S. and noncitizen workers," said DHS Secretary Alejandro Mayorkas.

Relief for Seasonal Employers

Gray Delany, executive director of the Seasonal Employment Alliance, an H-2B advocacy group based in the Washington, D.C., area, said the additional visa release will assist the fishing industry in meeting consumer demand, allow hotels to expand room inventory, help restaurants to restore full service, and permit scheduled fairs and festivals to go on as planned.

"This release will also permit many seasonal employers, who have a need in February or March and have filed for such in the past, to return to their true date of need," Delany said. "Due to the insufficient number of visas, employers for the last several years have postponed the start of their seasons, canceled contracts or permanently downsized their businesses to account for the reduction in their workforce."

Chip Rogers, president and CEO of the American Hotel and Lodging Association, said the additional visas will help the lodging industry "grapple with the tightest labor market in decades. Filling open jobs is the hotel industry's top priority, and the H-2B visa program helps hotels and other industries with strong seasonal business and workforce needs to do just that."

President Biden's ban on unvaccinated travelers could be a potential snag to employers hiring foreign guest workers. Many people in the countries that typically supply H-2B workers are unvaccinated and may have trouble finding a vaccine. Employers have asked the Biden administration to exempt foreign workers from the vaccine requirement, but the administration hasn't yet acted on this request.

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