When the H-2 visa category was created, Congress’ intent was to help U.S. businesses hire foreign workers for jobs for which U.S. workers weren’t available. The H-2B visa program was enacted to meet the demand of U.S. businesses for temporary workers in non-agricultural occupations.
Congress allotted 66,000 visas per fiscal year for this program, with 33,000 visas available for workers who start employment in the first half of the fiscal year, and the remaining 33,000 for the second half. U.S. Citizenship and Immigration Services (USCIS) recently announced a proposed regulation that would allow for another 64,7160 H-2B visas, 20,000 of which would be available for citizens of Colombia, Costa Rica, Ecuador, El Salvador, Guatemala, Haiti, and Honduras. The remaining balance would go to returning H-2B workers, or those who were granted an H-2B visa within the last 3 years. If a person has held an H-2B visa for a total of 3 years, they must depart and remain outside the U.S. for at least 3 months before being eligible for another H-2B period of stay.
If you own a business and must make decisions on how to supplement your workforce and you are unable to find U.S. employees, then the H-2B program is a potentially valuable option. However, due to the detailed timing and procedural requirements, the program is a daunting and complex process.
The Process:
The H-2B visas are issued twice a year, beginning in October and then again in April. As part of the process, employers first need to obtain a Prevailing Wage Determination (PWD) from the Department of Labor (DOL). Upon receipt of the PWD, employers may file for a labor certification with the DOL no earlier than 90 days prior to the employer’s start date of need.
Once the labor certification is filed, employers are placed in groups tied to the date of when the labor certification was filed. There are three separate groups: Group A, B and C. The employers who file their labor certification first (earliest) are placed in Group A.
DOL adjudicates Group A first and then moves to Group B and C. Employers are unable to file with USCIS until they receive their labor certification from DOL. Filing with USCIS, and ultimately receiving a receipt notice from USICS, is how they reserve their place in line for the limited number of visas.
Those who are placed in Group B or C are likely to get their USCIS filings rejected since the visas are used up by the time they are able to file. Although Congress intended this program to help U.S. employers supplement their workforce, there are clearly significant barriers that keep the H-2B program from achieving its goal.
Workforce Challenges:
With an unemployment rate of 3.9%, most businesses today are facing a labor shortage. Many already have an ongoing recruitment program but can’t find sufficient U.S. workers. Those that venture into the H-2B world do so because they desperately need workers.
According to a study done by the University of Massachusetts Global, a nonprofit affiliate of the school, the negative side effects of low unemployment include difficulty in recruitment and retention of workers, lower productivity, and potential for a subsequent recession. A tight labor market also drives up costs for businesses which will, in turn, increase inflation pressures. The ripple effect of these potential consequences may ultimately result in business failures and lost jobs for U.S. workers.
A Better Option:
In order to meet changing workforce demands, it seems to me that the H-2B program should not have an annual limit on the number of available visas, just like the H-2A visa program, which does not. Removing, or at least increasing, the H-2B cap would help U.S. businesses address their workforce needs.
It’s time for the government to truly help and not hinder businesses trying to hire sorely needed workers for the positions they have available. Creating artificial and arbitrary barriers, lotteries, and quotas help neither our economy nor our national security. Hindering our economy in this unnecessary way is simply un-American.
