Hurdles for Employers Hoping for Additional H-2B Visas

As we’ve written  previously, in March, Congress authorized issuance of over 63,000 additional H-2B visas for temporary non-agricultural seasonal jobs with start dates prior to the end of FY 2018 (September 30, 2018), but the Departments of Labor (DOL) and Homeland Security (DHS) chose to allocate only another 15,000 H-2B visas.

The two departments issued a joint rule on May 31, 2018 describing the process that employers must follow if they hope to obtain any of these additional H-2B visas.  For employers whose petitions were eliminated from consideration when the number of positions far exceeded the 33,000 cap, the joint rule specified that despite having already conducted the requisite recruiting, if their jobs had start dates before April 15, 2018, the employers  would have to conduct new recruitment efforts.

In addition, as happened in 2017, the joint rule interpreted Congress’s instruction that additional visas be issued if DOL and DHS determine that there are insufficient U.S. workers to satisfy “the needs of American businesses” to mean that individual businesses must show that they would “suffer irreparable harm, i.e. suffer a permanent and severe financial loss.”  While the  joint rule specified that employers can meet this test by submitting an attestation to that effect, in case of audit, they would need keep documentation on file demonstrating inability to meet financial or contractual obligations, and/or financial or tax records showing permanent and severe financial loss during this “period of need” compared to prior years, and/or evidence of the number of workers needed in prior years compared to those currently employed, and/or evidence that the business is dependent on H-2B workers.

Just days after publishing the joint rule, USCIS  announced that from May 31 to June 6, it received petitions for more than the 15,000 available visas.   It conducted a lottery to select which of those petitions it would process, and rejected the remainder.

Looking ahead to FY-2019 H-2B visas for positions starting between October 1, 2018 and March 31, 2019,  the DOL issued a notice on June 1st  that employers can initiate the H-2B process on July 3, 2018 by filing the prerequisite Temporary Labor Certification application.  To avoid having to conduct a lottery, the notice indicated that applications will be receipted by the millisecond and will be processed in the order received beginning at 12:00:00.000 a.m. Eastern Time on July 3.

If Congress fails to reform the immigration laws to create a significant, and permanent, increase in the number of H-2B visas, it’s clear that the H-2B program will continue to be an unreliable resource for Maine’s employers with seasonal labor needs.   This will stifle our economy, which clearly cannot grow without enough workers.

Note that this is not legal advice.  Employers seeking more detail about the process of applying for H-2B visas should consult with a competent immigration attorney.