President Trump signed the Consolidated Appropriations Act, 2021 into law on December 27, 2020, after days of threatening to veto it. The omnibus bill to fund the government through September 30, 2021, included several immigration provisions.
Division O, Title I, Sec. 105, allows the Department of Homeland Security (DHS) to issue additional H-2B non-agricultural seasonal worker visas for the remainder of FY 2021, following consultation with the Department of Labor and a determination that the needs of American businesses cannot be met with qualified, willing, and able U.S. workers.
The provision will permit DHS to approve up to 135, 320 cap-subject H-2B visas for seasonal non-agricultural jobs for FY 2021, instead of the usual 66,000.
Congress has enacted similar legislation in each of the past four fiscal years’ omnibus spending bills, but each time, DHS has been slow to approve release of the additional visas. The good news is that this year’s fix was enacted early enough that if fully and quickly implemented, businesses may have improved prospects of getting their seasonal hiring needs met.
The bad news is that in each of the past four fiscal years, while the government could have authorized issuance of more than 69,000 additional H-2B cap subject visas each year, it only authorized 15,000 to 30,000 more H-2B visas instead.
We can hope that the Biden administration will authorize issuance of the full extent of additional visas that Congress approved, to alleviate summer seasonal worker shortages that are likely to exist even if the pandemic is still ongoing. USCIS posts updates on the availability of cap-subject H-2B visas here.
Once again, however, Congress authorized a fix only for the current fiscal year. Congress should craft a permanent law increasing the number of temporary H-2B visas available to meet the nationwide need for non-agricultural seasonal workers. With a new administration that has stated its commitment to work for positive immigration reforms, perhaps Congress and the Biden administration can finally get this done.