On February 15, 2019 , President Trump signed Public Law 116-6, the Consolidated Appropriations Act of 2019, funding the federal government for the rest of this fiscal year. Division H, Title I, Sec. 105 of that spending bill allows issuance of additional H-2B non-agricultural seasonal worker visas for the 2019 summer season beyond the 33,000 cap, upon consultation between the Department of Homeland Security and the Department of Labor, and if it is determined that the needs of American businesses cannot be met with qualified, willing, and able U.S. workers.
Given that petitions for nearly 98,000 positions were received by the Department of Labor in the first five minutes of the “summer” H-2B visa filing window, there is no question that U.S. businesses need more H-2B visas than the 33,000 cap allows.
The good news is that this year’s fix was enacted early enough that if fully and quickly implemented, it should permit issuance of up to 135, 320 H-2B visas for seasonal non-agricultural jobs for FY 2019, instead of being capped at 66,000 visas.
The bad news is that Congress has authorized this same “fix” in each of the past two fiscal years’ omnibus spending bills, and while the government could have authorized issuance of over 69,000 additional H-2B visas in both FY 2017 and FY 2018, it did not. Instead, each year the administration authorized only 15,000 more H-2B visas. Also, in the prior two years, the government announced the additional visas far too late to be of any use to most employers with summer seasonal needs.
We can only hope that this year will not be a repeat of FY 2017 and FY 2018, so that there will actually be meaningful relief for this year’s expected summer seasonal worker shortage. USCIS posts updates on the availability of cap-subject H-2B visas here.
Disappointingly, for the third year in a row, Congress declined to enact a permanent solution to the chronic lack of sufficient H-2B cap-subject visas. Instead, just as happened in FY 2017 and FY 2018, they authorized additional H-2B visas only for the current fiscal year, which ends on September 30th.
Congress needs to craft a permanent law increasing the number of temporary H-2B visas available to meet the nationwide need for non-agricultural seasonal workers. Particularly when unemployment is at record lows, businesses with seasonal needs should not have to face uncertainty about the availability of H-2B visas each year.