You may have seen a few articles recently about the shortage of temporary seasonal workers. Some articles were about shrimp boats in the South docked because of a lack of workers, or the Alaskan salmon industry being crippled due to labor shortages, while others were about resorts in Minnesota having to close down rooms due to lack of staff. These articles mention the H-2B visa program but may not have really explained what that visa program is and why it is important for the United States. The truth is we need these visas to strengthen our economy. Let me explain:
The H-2B visa is not an easy way for employers to hire immigrants over U.S. workers. The H-2B visa is the “go to” visa option for employers who cannot find U.S. workers to perform temporary non-agricultural work. An employer must show that the need is temporary (i.e., seasonal, peak load, intermittent, or a one-time occurrence of no more than three years) and must pay the appropriate wage for the job, which is the higher of the minimum wage or the mean wage issued by the Department of Labor (DOL), recruit for U.S. workers, including posting the job offer with the state job service, and pay for all visa fees and transportation to and from the worksite from the worker’s residence. For immigration attorneys looking to brush up on their H-2B expertise, an upcoming AILA conference on PERM and H-2Bs in mid-August could be just the ticket.
There are provisions in place to protect U.S. workers and foreign workers alike. H-2B employers are required to adhere to federal rules and labor requirements designed to protect U.S. workers. In addition, after several years of litigation, USCIS and DOL issued new rules in 2015, which provided additional provisions to protect H-2B workers and U.S. workers.
The number of H-2B visas that can be issued each year is capped, but the cap isn’t high enough. Despite strict obligations imposed on employers who participate in the H-2B visa program, demand for H-2B visas has steadily grown since the program’s creation, and the demand for these visas now routinely surpasses their supply. USCIS can only issue 66,000 H-2B visas each fiscal year and for the past three years, the number of visas has run out.
In 2016, Congress exempted returning H-2B workers from the cap if they met certain criteria. The 2016 “returning worker provision” exempted H-2B workers from the cap if they had previously worked in the U.S. in H-2B status during FY2013-FY2015. While this exemption provided some relief, the H-2B cap was still reached in May, four months before the end of FY 2016. The returning worker exemption was also in place from FY 2005 through FY 2007.
Congress didn’t renew the H-2B returning worker exemption for Fiscal Year 2017. Instead, Congress passed the buck to DHS and empowered it to increase the number of H-2B visas after consultation with DOL. H-2B employers waited anxiously for more than four months until USCIS announced that it would release an additional 15,000 H-2B visas for FY 2017. Unfortunately, for many employers, it was too little too late, as many needed these workers in mid-April. Other employers, however, leapt at the chance to request the visas, a critical life line to meeting their labor needs.
Employers, including President Trump’s Mar-a-Lago resort, rely on the H-2B program to fill temporary positions like waiters, servers, cooks, housekeepers, and landscapers during peak months. These are jobs for which employers must attest that they have tried to fill the jobs with U.S. workers and have been unable to do so. As an H-2B employer, President Trump knows that U.S. employers are so desperate that they are willing to pay to bring in workers from as far away as Eastern Europe and fulfill labor obligations that are not imposed on other U.S. employers. If H-2B employers could hire U.S. workers, they would. What employer would voluntarily undertake the expenses and obligations of the H-2B program if they could avoid it? As an H-2B employer, President Trump knows that we will face another shortage of H-2B visas in FY 2018 unless Congress passes legislation to increase the numbers, or brings back the returning worker exemption.
So as the start of FY 2018 draws closer, H-2B employers are already getting ready for another tumultuous season with no guarantee that Congress will take the necessary actions to help them. But the actions of our own President clearly show that U.S. employers hire H-2B workers because they have exhausted all of their options to find workers in the U.S. labor force. Unless the problems associated with the H-2B cap are addressed, U.S. employers and our seasonal economy will continue to suffer. U.S. companies and the communities that rely on these industries are anxiously waiting to see what happens next.