An H-2B allows U.S. employers to bring foreign nationals to the United States to fill temporary non-agricultural jobs when U.S. workers are not available. An H-2B must have a foreign residence and must be coming only to fill a non-agricultural position which is temporary or seasonal. Top industries utilizing H-2B workers include landscaping and construction as well as resort and hospitality services, food service and retail. The following is an opinion article written by Douglas D. Conley, Chief Compliance Officer, Action Visa Assistance, Inc.
Politics, Pandemic & Seasonal Employers: The Current State of Play for the H-2 Visa Programs
Business owners and managers know it’s hard enough to find good help, but when you can’t find any help, running your business can be nearly impossible. If your business suffers due to a lack of local labor, Action Visa Assistance may be able to help, so you can do what you do best: run your business. Information about the H2 Temporary Labor Programs is free.
The H-2 programs have been a controversial topic for years. Opponents of the programs accuse employers of not wanting to pay US workers a decent wage, and of preferring to hire foreign workers instead. As a result, a largely uninformed public only hears that jobs are going to foreign, not US workers. There are many in the US Department of Labor and in Congress who echo those same opinions.
Seasonal employers are caught in the middle, arguing that if they were able to hire enough local workers, they wouldn’t have to depend on foreign visas to fill temporary, entry level, non-skilled jobs.
An Increase in H-2 Employer Audits
After filing a suit against a company for discrimination against US workers in May 2018, the USDOJ, USDOL, USCIS and DHS signed a Memorandum of Understanding (MOU) to “combat fraud, abuse and discrimination against US workers, in favor of hiring foreign workers instead.” As a result, and also because of the Buy-American-Hire-American Executive Order, both on-site and letter audits of H2 employers increased. In June 2020, the USDOL Wage and Hour Division announced the hiring of 147 new investigators. Those new agents can almost be guaranteed to add to compliance audits. Due to the COVID-19 virus, the majority of those will undoubtedly be sent to employers via letter.
The Unemployment Rate and H-2B Demand
Prior to March 2020, the low unemployment rates seen from 2016 to 2000 contributed to a yearly increase in the number of seasonal employers applying for H-2B workers. This resulted in the limited number of available visas being taken faster each year. Due to the demand, which must be certified by the US Department of Labor, Congress gave discretionary authority to the Department of Homeland Security to increase the number of H-2B visas, which they did, although not to the extent for which they were authorized. DHS released an additional 20,000 visas in each of 2017, 2018 and 2019.
DHS had been posed to release 30,000 visas in 2020, but due to the rapid increase in the unemployment rate from 3.5 percent to 14 percent, DHS withdrew those additional visas. The administration did not believe it looked good, politically, to issue more foreign work visas while so many US workers were being unemployed.
In an effort to “protect American workers,” all H-2B visas have been put on hold, with the Department of Homeland Security and the Department of State only recently releasing their guidelines of which H-2B occupations might be exempted from the immigration moratorium, that is due to end at the end of 2020. It has not affected the H-2A program for agricultural employers, such as farms, orchards and wholesale growers to the degree that it has for H-2B employers.
The government seems to view, and even treat H-2A [agriculture] employers differently than their H-2B counterparts, who have the same issue with a lack of adequate local, temporary, willing and available labor.
While H-2A employers are still being audited for compliance, the H-2A program has no limit on the number of workers, who are still being processed through the border. In fact, normal consulate interview requirements have been waived for agricultural workers, which is not the case with H-2B workers.
In spite of 10 percent unemployment, thankfully down from 14 percent, H-2B employers are still seeking US applicants. The government has made a few minor allowances to help H-2 employers. For example, the 36-month continuous presence limit has been temporarily waived, making it easier and faster for qualifying employers to have access to workers already in the US.
What You Can Do
In the interim, as we wait for Congress, and for the unemployment rate to drop, it is important for employers to do the following:
- Pay very close attention to the language in your job ad
- Seriously consider State Workforce Agency (SWA) referrals
- Take the time to properly record and document required criteria, and periodically perform a review, or “audit” of your program records
- Records must be available within 72 hours of demand by the US Department of Labor. With penalties of nearly $13,000 per violation, non-compliance can be costly.