H-2B Visa Demand Again Far Surpasses Annual Cap

Roy Maurer By Roy Maurer January 11, 2018
H-2B Visa Demand Again Far Surpasses Annual Cap

​Employers in the U.S. have already filed more visa applications for H-2B foreign guest workers to begin work this spring and summer than are available for the entire fiscal year, according to the Department of Labor (DOL).

Editor's note: The DOL said Jan. 18 it won't send out any temporary labor certifications for H-2B visas until Feb. 20. All applications that meet the program requirements as of that day will be released in sequential order, based on the date and time the application was filed, the agency said.

On Jan. 1—the first day seasonal businesses could file for the visas—employers sent the DOL about 4,500 applications covering 81,600 jobs for work that begins 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]

The cap has been met quickly in previous years, but the number of applications filed on the first day is "absolutely unprecedented," said Kevin Lashus, a partner in the Austin, Texas, office of law firm Fisher Broyles. "The demand will far, far exceed the cap."

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 2018 was met on Dec. 21, 2017.

The DOL administers labor certification for the program to protect the wages and working conditions of both H-2B and U.S. workers. A big concern is how DOL will "pick and choose which labor certifications to adjudicate first given all of the volume," Lashus said. "DOL [has said] that it was first in by the day, not the time. So, we have no way of knowing how they're dealing with the 4,500 applications filed on the first day."

He added that DOL may need to move to a lottery system to randomly select applications for certification over others, such as is done with H-1B visa petitions.

Employers say the workers are necessary to meet peak seasonal demand, while critics of the program argue that H-2B workers are a form of cheap foreign labor that undercuts U.S. workers.

"Clearly, employers cannot find able and willing U.S. workers for these positions," Lashus said. "These employers are paying a premium—tens of thousands of dollars—to use a visa process that is absolutely inadequate to meet the needs of these employers in an array of industries."

Due to the excess demand last year, Congress ultimately directed the Department of Homeland Security to issue an additional 12,294 visas during the summer to businesses that could demonstrate "irreparable harm" without them.

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," said Paul Mendelsohn, vice president of government relations for the National Association of Landscape Professionals, based in Herndon, Va.

"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," he said. "It's a big problem that Congress and the administration must address. Otherwise, thousands of small businesses and the livelihoods of their full-time American workers are in jeopardy."

Mendelsohn, Lashus and others say a legislative fix is needed. "There is a significant grassroots effort to compel the U.S. Congress to assist employers by agreeing to a 'returning worker' exemption," Lashus said. The "returning worker" exemption was allowed by Congress in prior years to alleviate need. The exemption let employers hire H-2B workers and not have them count against the visa cap if those workers had come to the U.S. on an H-2B visa in at least one of the prior three fiscal years.

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