The H2-B Option to Temporary Labor Shortages

By Jason Susser

A constant question and complaint in the immigration world: “Why doesn’t the US have a temporary worker program?” Well, we kind of do. While far from perfect, The H-2B visa program was created for US employers to hire non-agricultural workers on a temporary basis (H-2A is available for temporary agricultural workers). Unfortunately, navigating the H-2B system is easier said than done.

Nationals from dozens of countries are eligible for the program. However, there is a statutory cap of 66,000 H-2B visas per year, with 33,000 allotted to workers beginning their employment between October 1 and March 31, and 33,000 allotted to those beginning between April 1 and September 30. The cap is a critical issue, since according to the Office of Foreign Labor Certification (OFLC), 4,500 H-2B applications for approximately 82,100 positions were filed in January 2017 for the April 1 start date. Under previous law, the returning worker program allowed returning H-2B workers to be exempt from the 66,000-person cap. Unwilling to save the returning workers program in 2017, the Trump administration instead opted to release a rule allowing for a one-time increase of 15,000 H-2B visas for the fiscal year ending September 30. For employers analyzing the risk/reward of spending money on immigration to resolve their workforce shortages, the cap and absent returning worker program can be deterrents. However, creating a plan and executing it with experienced H-2B professionals can still be extremely beneficial.

A common misconception exists that the H-2B program can only be used by construction and landscaping companies. This myth stems in part from the facts. In the beginning of 2017, 49.7% of H-2B visas went to landscaping and grounds keeping workers. However, the H-2B program requires that the position be temporary but not necessarily unskilled. While many H-2Bs go to landscapers and concrete finishers, some smart practitioners are securing temporary visas for sales reps and, in some cases, even nurses.

A temporary need boils down to a date or event that will end the employer’s need for the supplemented workforce. For a position to qualify as temporary it must be considered seasonal, peakload, intermittent, or a one-time occurrence. It is easy to see how a landscaping company can show that its work is inherently seasonal. Further, companies servicing ski resorts or cruise ship ports can generally show huge seasonal spikes in their payrolls and profits to justify the need for most of their workforce during those seasons.

Other employers may be able to prove a peakload when there is a need to supplement an already existing staff with additional temporary workers for a particular time period up to 9 months. In this case, peakload temporary workers are not becoming part of the regular operations like seasonal workers, but are supplementing the staff due to a temporary need.

Intermittent employment is available for employers who only occasionally need additional employees to make some jobs or contracts feasible. One-time occurrence is the only category of temporary need that is available for more than 9 months in a calendar year, as up to three years can be requested. In certain situations, employers may be able to prove that they have not needed temporary workers in the past and should not need them in the future, but due to present circumstances they are needed at this time.

The H-2B process can be broken down into four steps. First, the employer must obtain a prevailing wage determination,

which determines what the minimum wage employees in the chosen position are entitled to. The petitioner must then prove the temporary labor shortage to the Department of Labor using a trimmed down version of the labor certification recruitment process. This process proves to DOL that there are not enough US workers who are able, willing, qualified, and available for the open positions. Next, employers and their counsel must submit petitions for the nonimmigrant workers to USCIS. Lastly, the foreign

national worker must go to the Consulate or Embassy for processing of the visa itself.

This process has tight filing deadlines, only adding to the confusion. Having said that, many employers are missing opportunities to supplement their workforce with much needed staff legally authorized to work. Any employer with a labor shortage who is either gambling with unauthorized workers or passing up opportunities due to their depleted workforce should speak to an immigration professional and set up a plan well in advance for defining their temporary need and pursuing H-2B.

Jason Susser, Attorney
Siskind Susser PC