G&K attorney Yusra Bokhari authored this article for the November 2023 edition of InBusiness Magazine.
On November 3, 2023, the Department of Homeland Security and the Department of Labor announced that the availability of H-2B visas would be nearly doubled in the 2024 fiscal year. The announcement is anticipated to help American businesses faced with burdensome staff shortages as the “increase will help address the need for seasonal workers and reduce irregular migration.”
The current H-2B program has a Congress-mandated annual quota of 66,000 visas. The DHS and DOL announcement provided that an additional 64,716 H-2B temporary nonagricultural worker visas would be made available in the upcoming year, for a grand total of 130,716 available visas. The H-2B visas are granted on a first-come, first-served basis.
Through this announcement, the DHS and DOL reserves approximately 45,000 supplemental visas will be issued to returning H-2B workers. Of these, 20,000 H-2B visas are specifically reserved for returning workers from Colombia, Ecuador, Costa Rica, El Salvador, Guatemala, Honduras and Haiti.
The H-2B Program
By way of background, the H-2B nonimmigrant program permits American employers to temporarily hire seasonal workers performing nonagricultural labor or services in the United States. The H-2B program permits employers to temporarily hire foreign workers to provide nonagricultural labor or services in the United States. The qualifying positions must be temporary in nature — in other words, jobs where there is a one-time, seasonal or intermittent need. H2B workers are consistently in demand, and frequently placed, in the construction and hospitality industries.
H-2B Qualifying Positions
The United States Citizenship and Immigration Services has identified the following categories of qualifying workers:
1. One-time occurrence. A petitioner claiming a one-time occurrence must show that it has:
- An employment situation that is otherwise permanent, but a temporary event of short duration has created the need for a temporary worker; and
- Not employed workers to perform the service or labor in the past and will not need workers to perform the services or labor in the future.
2. Seasonal need. A petitioner claiming a seasonal need must show that the service or labor for which it seeks workers is:
- Traditionally tied to a season of the year by an event or pattern; and
- Of a recurring nature.
Jobs that are unpredictable, subject to change, or needed during a vacation period for permanent employees do not qualify for the “seasonal need” category.
3. Peak load need. A petitioner claiming a peak load need must show that it:
- Regularly employs permanent workers to perform the services or labor at the place of employment,
- Needs to temporarily supplement its permanent staff at the place of employment due to a seasonal or short-term demand, and
- The temporary additions to staff will not become part of the employer’s regular operation.
4. Intermittent need. A petitioner claiming an intermittent need must show that it:
- Has not employed permanent or full-time workers to perform the services or labor, and
- Occasionally or intermittently needs temporary workers to perform services or labor for short periods.
Application Process
The American employer or business sponsoring H-2B workers is referred to as the Petitioner. The Petitioner must first obtain a labor certification from the DOL. The labor certification will be issued once the Petitioner has satisfactorily demonstrated that there are not enough American workers who are able, willing, qualified and available to perform the temporary work for which a foreign worker is sought. The goal of the labor certification is to ensure that hiring foreign workers will not adversely affect the wages and working conditions of similarly employed American workers.
Once the DOL issues the labor certification, the Petitioner prepares and submits Form I-129 to USCIS with a copy of the temporary labor certification issued by the DOL.
Once USCIS approves the Form I-129, the prospective H-2B worker must apply for the H-2B visa at the local American Embassy or Consulate.
Next Steps
Once the American Embassy or Consulate issues the H-2B visa, the prospective worker may seek entry to the United States. The maximum period of stay in this category is three years.
A person who has held H-2B nonimmigrant status for a total of three years must depart and remain outside of the United States for an uninterrupted period of three months before seeking readmission as an H-2B nonimmigrant.
Click here to read the article published by In Business Magazine.