Relief from Summer 2018 H-2B Visa Shortages included in Spending Bill

On March 23, 2018, President Trump signed Public Law 115-66, the Consolidated Appropriations Act of 2018, to fund the federal government for the rest of this fiscal year.  Division M, Title II, Sec. 205 of that  spending bill allows issuance of H-2B non-agricultural seasonal worker visas for the 2018 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 over 80,000 positions were received by the Department of Labor on the very first day of the “summer” H-2B visa filing season, there is little question that U.S. businesses need more H-2B visas than the 33,000 cap allows.

This “fix” is similar to the one intended to alleviate last year’s H-2B visa shortage.   The good news is that this year’s fix was enacted more than 6 weeks earlier than last year’s, and the necessary calculations to determine the maximum number of visas allowable under the fix were done last year (and therefore, shouldn’t need to be repeated this year).

The bad news is that while the government could have authorized over 100,000 additional H-2B visas last year, it declined to do so, authorizing only 15,000 more visas instead.  Also, the government announced the additional visas in mid-July last year – far too late for most seasonal employers.  Hopefully this year the Government will expeditiously determine that it will make far more H-2B visas available than it did last year, 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.

The further bad news is that Congress once again declined to enact a permanent solution to the chronic lack of sufficient H-2B cap-subject visas.  Instead, just as happened last year, 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.