H-2B Visa Demand Exceeds Numbers Available
For those unfamiliar with the H-2B visa program, this visa category is reserved for foreign workers to provide nonagricultural services on a one-time, seasonal, peak load, or intermittent basis. Like the H-1B program, the H-2B visa is subject to a congressionally set cap of 66,000 visas per year, with 33,000 reserved for the first half of the fiscal year and the rest for the second half of the fiscal year.
However, before employers can submit a Form I-129 petition to U.S. Citizenship and Immigration Services, requesters must first obtain a temporary labor certification from the U.S. Department of Labor, which involves demonstrating a shortage of U.S. workers who are minimally qualified, willing, and available to fill the job openings, akin to the labor market test required by the permanent labor certification (PERM) process. As a prerequisite to obtaining temporary labor certification, employers must obtain a prevailing wage determination to prevent the depression of wages and make efforts to recruit U.S. workers for the job positions to demonstrate a genuine need for hiring foreign workers.
Aside from the myriad complicated and exacting steps that go into obtaining the H-2B visa, one of the most common issues facing the program is that stakeholder demand often exceeds government supply. For example, the hospitality, landscaping, construction, and seafood processing industries often have fluctuating labor demands that are primarily driven by a variety of considerations, such as consumer demand, supply chain conditions, and environmental factors, among others.
According to the U.S. Bureau of Labor Statistics, the number of jobs in 2021 for construction laborers was 1,572,200; the number of jobs for grounds maintenance workers was 1,299,000; the number of jobs for janitors and building cleaners was 2,298,400; and the number of jobs for food preparation workers was 817,400. Each of these job categories is forecasted to experience growth over the next decade.
However, the U.S. labor market often struggles to accommodate the increase in job openings with U.S. workers who are willing and able to fill these temporary nonagricultural positions. While the U.S. Departments of Labor and Homeland Security have recently taken welcome steps to temporarily increase the number of available H-2B visas, these 64,716 supplemental visa allocations are the administrative equivalent of putting lipstick on a pig. And a carveout of 20,000 additional H-2B visas reserved for nationals of El Salvador, Guatemala, Honduras, and Haiti will do little to ameliorate the surge in border crossings from Northern Triangle arrivals seeking employment prospects in the United States.
Systemic steps must be taken at a legislative level to reconcile the minimum number of H-2B visas allotted each year with current U.S. labor market needs. But practitioners and users of the H-2B program can expect little meaningful change in this current divided government, with a republican majority in the House and democratic majority in the Senate. Moreover, if bills such as those recently passed in Florida are a harbinger of what may be expected on a federal level if Republicans retake the White House and Senate majority, stakeholders can likely expect a chilling effect on the H-2B visa program.
Enacting strict new legislation can introduce new obstacles and uncertainties for employers and foreign workers alike, which can lead to reduced program accessibility and a concentration of H-2B visas with employers fortunate enough to afford legal counsel to help them navigate an already complex process. Additional uncertainties with the H-2B program can make it difficult for employers to plan ahead and create stability in their workforce, making long-term business planning and investment difficult. And if employers with genuinely temporary staffing needs are unable to fill positions, this in turn can adversely affect U.S. businesses and have ripple effects on the economy.