H-2B Visa Applications Far Surpass Annual Cap

By Roy Maurer Feb 13, 2017
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Employers in the U.S. submitted more petitions for H-2B foreign guest workers to begin work this spring and summer than are available for the entire fiscal year, U.S. Citizenship and Immigration Services (USCIS) announced.

Petitions for 82,100 workers were filed in January for work to begin between April and October, far exceeding the 33,000 H-2B visas available during that time.

The H-2B visa program allows U.S. employers to bring foreign nationals to the United States to fill temporary, low-skilled nonagricultural jobs, primarily in landscaping, forestry, hospitality and recreation.

[SHRM members-only toolkit: Obtaining U.S. Employment Visas]

Congress has set the H-2B visa cap at 66,000 per fiscal year (FY), with 33,000 visas granted for workers who begin employment in the first half of the 12-month period (October 1-March 31) and 33,000 visas for workers who begin employment in the second half (April 1-Sept. 30).

Any unused numbers from the first half of the year can be made available to employers seeking to hire H-2B workers during the remainder of the year, but the cap for the first half of FY 2017 was met on Jan. 12, USCIS said.

In FY 2016, the cap for the first half of the year was met March 15, and the full cap was reached May 12.

"I think it's directly connected to the fact that Congress has not renewed the returning worker exemption for 2017," said Paul Mendelsohn, vice president of government relations for the National Association of Landscape Professionals, based in Herndon, Va.

The returning worker exemption allowed employers to hire H-2B workers who had come to the U.S. in at least one of the prior three fiscal years without those workers counting toward the annual cap on visas. The exemption expired Sept. 30, 2016.

Mendelsohn and other advocates for the program expect Sen. Thom Tillis, R-N.C., and Rep. Andy Harris, R-Md., to introduce legislation soon that will renew the returning worker exemption and codify it in law.

Industry Reaction

The failure of the H-2B visa program to meet the demand for seasonal workers affects landscapers more than any other industry. "The start of the busy season for landscape professionals is April 1," Mendelsohn said. "If landscape employers are unable to get their workers, they often have to cut back on contracts with clients, drop clients and shuffle around their workforce. Curtailing the ability of U.S. businesses that are following the legal process and making that process more unpredictable puts employers doing the right thing in a position where they lose clients or jobs to those who operate using undocumented workers. It's a big problem."

President Donald Trump has broadly expressed his intention to cut back guest worker programs and instead encourage employers to hire more native U.S. workers.

Mendelsohn said that "despite the rhetoric that the H-2B program deprives U.S. workers from jobs they would otherwise fill, our members would much prefer to hire locally—they hate using H-2B because it's so costly and cumbersome—but they can't find enough local workers willing to take these jobs on."

He noted that Trump's nominee to lead the Department of Labor, CKE Restaurants CEO Andrew Puzder, spoke favorably about the H-2B program in the past. "But we don't know if that will carry over. We don't know how much some of the comments made by President Trump about putting U.S. jobs first will impact the program. It's kind of a guessing game based on various comments made by people who will hold some influence in the new administration."

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