August 1, 2017

The H-2B Visa Provides Jobs for U.S. and Foreign Workers



During the summer, tourists and citizens alike flock to U.S. resorts and seasonal restaurants to partake in the sun, fun, and food these businesses provide. However, recent issues with the employment immigration system have left these businesses struggling to provide. The H-2B visa—which covers such seasonal, non-agricultural work—is necessary to keep American businesses alive during their peak seasons, but some changes are necessary to protect both foreign and U.S. workers.

The H-2B visa is a temporary employment visa granted to seasonal non-agricultural workers, such as those who work at resorts or for landscaping companies. The visa has an annual cap of 66,000 visas, with 33,000 visas granted for each half of the fiscal year. Each visa allows the individual worker to work and reside legally in the country for the season—usually up to ten months—or a one-time period of up to three years.  

In order to acquire an H-2B visa, the immigrant’s employer must petition for it. This includes making a definitive showing that there are not enough U.S. workers willing, qualified, and able to do the work, that hiring the foreign worker won’t affect the wages and working conditions of any similarly employed U.S. workers, and that the need is actually temporary.  

The federal government made significant rule changes in 2015 in order to provide more worker protections to both foreign and U.S. workers. These included adding additional U.S. worker recruitment requirements and layoff protections, as well as wage and work hour requirements for foreign workers. They also provided retaliation prohibitions against employers, a prohibition against withholding or destroying any immigration documents, and a prohibition against placing the worker in a job not petitioned for.

One rule that has made the program much simpler and better for businesses, however, has recently lapsed. This rule allowed returning workers to be exempt from the visa cap, thereby allowing a larger number seasonal workers into the country each year. This lapse has created a significant shortage of seasonal foreign workers, who many U.S. businesses rely on in order to stay afloat. Rather than having foreign workers who return each year, businesses must fight amongst each other to get enough of the limited visas to fill their workforce for the season.

Employers have since been complaining about the shortage of H-2B visas, and the cap for the visa was met in early March. These businesses have great difficulty finding U.S. workers who are qualified and willing to take on these jobs, as they are temporary by nature and often grueling. This requires them to bring in foreign workers to fully staff their businesses and stay open during their busiest time of year.

The visa has received bipartisan attention as both Democrats and Republicans with these businesses in their states have called for a cap increase. Congress attempted to remedy this shortage by authorizing the possible allocation of up to 64,000 more H-2B visas. However, in doing so, they did something unprecedented—they left the allocation decision up to Department of Homeland Security Secretary John Kelly. Secretary Kelly eventually decided in mid-July to allocate 15,000 of those extra visas to be used by business owners for the summer season.

For many businesses, this addition may be too little, too late. The expansion was granted six months later than normal, and it can take up to sixty days to approve a petition for an H-2B visa, so these visas may not actually be available until after the peak season has already passed and the need no longer exists.

This has forced businesses reliant upon these visas to either limit their business or close, thereby also harming their U.S. workers by putting them out of a job. Some states have taken drastic measures in order to keep their businesses open, such as Maine, which conditionally commuted the sentences of a number of prisoners in order to fill the labor shortage.

Opponents of the visa, however, are upset with the increase because they see it as another way U.S. companies use the immigration system to hire cheap labor. They insist that there are Americans available and willing to take the jobs, especially considering that the unemployment rate is highest among the low educated. These critics claim that employers simply aren’t looking hard enough and could be hiring college students or seniors to take on these jobs. Other opponents to the visa claim there there are flaws in the program which allow employers to engage in wage theft and forced labor.

Legislators have recently introduced solutions to some of the problems with the H-2B visa. Both the “Strengthen Employment and Seasonal Opportunities Now” Act and the “Save our Small and Seasonal Businesses” Act would reinstate the returning worker cap exemption, making it easier for businesses to bring in workers without re-filing petitions each year.

The “Save our Small and Seasonal Businesses” Act also includes a provision allowing for conditional approval of H-2B petitions after the cap is met in case a visa opens up later. It also requires more transparency from DHS on visa approvals by requiring online updates on the number of petitions submitted and approved, as well as an online disclosure of the methodology used to approve petitions and the raw data collected.

Permanently increasing the cap would also positively impact the businesses that use this program. The cap is consistently met, and Congress has already been raising the cap each year to deal with the number of applications submitted annually. As businesses continue to expand (as we hope they will), the need for seasonal workers will only increase. It would be beneficial to provide some certainty to the program by increasing the cap permanently rather than leaving businesses to hope and lobby to get the workers they need.

The H-2B program provides U.S. seasonal businesses with the workers they need in order to stay afloat, and protects the jobs of the U.S. workers who are employed by these businesses year round. There are significant flaws in the current program, but with existing bipartisan support, Congress can make positive change and better provide for American businesses.