How Unexpected Changes In The H-2B Visa Process Affect Seasonal Workers

A number of U.S.-based businesses are now hoping that they will have enough seasonal employees to stay open through the summer of 2018.

Why the worry? Because of an unexpected change in the way H-2B visas are being issued to temporary foreign workers.

You are likely going to be impacted by the change if you own a business that hires seasonal foreign employees – or even if you vacation or dine out during the summer.

Early in March, U.S. Citizenship and Immigration Services (USCIS) announced that due to an unexpected surge in the number of H-2B visa applications, and also due to processing delays at the Department of Labor (DOL), H-2B visas are now being handled differently.

HOW ARE H-2B VISAS NOW BEING APPROVED?

USCIS is now using a lottery system to approve H-2B visa petitions instead of using the “first-come, first-served” system that USCIS had previously announced and used for H-2B visas.

Why is that change important? It means the U.S. businesses that request H-2B visas can be far less sure that they will be granted visas for the seasonal foreign workers they will need this year.

HOW ARE EMPLOYERS RESPONDING TO THE CHANGE?

Timothy McNulty is a co-owner of the Lobster Pot, a restaurant in Provincetown, Massachusetts. What he told the Cape Cod Times echoes the sentiments of scores of business owners this spring:

“They went against what they said they were going to do. They’re changing the rules as they go. We’re all in a holding pattern. The worst part about this is, here we are March 1, and we have no idea. I don’t know if I’m getting part of my staff … It was a hard slap in the face.”

HOW DO EMPLOYERS OBTAIN H-2B VISAS?

The H-2B visa program permits foreign workers from sixty-two nations to be employed temporarily in the United States so that U.S.-based employers can meet seasonal labor shortages.

The employers who seek H-2B visas must offer those jobs first to U.S. workers and must advertise those jobs before the employers can be certified by the DOL to hire foreign workers.

If certified by the DOL, employers may then apply to USCIS for the H-2B visas they need. Finally, if those visas are granted, employers must obtain final approval for the particular individuals they want to hire.

The number of available H-2B visas is capped by Congress at 66,000 per year: 33,000 for the workers who are hired from October through March and another 33,000 for the workers who are hired from April through September.

WHAT TYPES OF WORK ARE H-2B EMPLOYEES HIRED FOR?

H-2B visas are provided primarily for seasonal positions in the hospitality and food industries – housekeepers, short-order cooks, dishwashers, meatpacking workers, and similar types of positions.

2018, however, is the first year that a lottery system has been used to approve H-2B visa requests.

USCIS received requests for approximately 47,000 workers from about 2,700 employers in February. USCIS conducted the H-2B lottery for the second half of fiscal 2018 on February 28th and approved 33,000 visas.

Representative William Keating (D-Massachusetts) said that using a lottery system to approve H-2B visas reflected “ineptness at its best and arrogance at its worst.”

“Thousands of businesses across the country will not be able to fully operate without H-2B worker assistance,” the congressman said in a brief statement.

WHY HAVE H-2B VISAS BEEN SO POPULAR POLITICALLY?

The H-2B visa is not generally considered politically controversial. It has considerable support in both parties since politicians want to advance the interests of the industries in their own states.

Senator Thom Tillis (R-North Carolina) says the H-2B program “is vital for businesses that desperately need temporary help to keep their doors open and keep their American workforce employed.”

It is simply not true that U.S. businesses use the H-2B program to save money by hiring cheap labor.

Employers pay for the visa application fees, and some U.S.-based companies even reimburse an employee’s transportation costs for travel to the United States.

In Ohio and Michigan, food packing and processing are the businesses that request the most H-2B visas.

If you hire seasonal foreign workers using H-2B visas, let an experienced Michigan or Ohio immigration attorney review your situation and discuss your options and possible alternatives.

HOW CAN AN IMMIGRATION LAWYER HELP?

U.S.-based employers who seek to hire temporary foreign workers face an avalanche of complex paperwork. An attorney can help you with it.

For example, before USCIS will approve an employer’s petition for temporary workers, that employer must file a labor certification application with the Department of Labor declaring that:

1. An adequate number of qualified U.S. workers are not available for the positions.
2. Hiring H-2B employees will not negatively impact the working conditions and wages of U.S. workers in similar positions.

Especially now, U.S.-based employers must not file visa petitions without legal advice and review. A good immigration lawyer will spot and help you avoid the mistakes that can get a visa petition rejected.

If you are a U.S.-based employer and you can’t find the employees that you need locally, discuss your circumstances with an experienced Michigan or Ohio immigration attorney.

If you are a temporary foreign worker in the U.S. with questions about your visa, your employment rights, or your legal status, a good immigration lawyer can answer those questions and address your concerns.

Employers who bring H-2B workers to the U.S. must comply with all employment and immigration laws.

WHAT KIND OF LEGAL GUIDANCE DO EMPLOYERS NEED?

A multitude of regulations govern employers who hire foreign employees, so you must have the sound and experienced advice of an attorney who knows immigration law comprehensively.

Immigration laws change constantly, and the current legal and political situation is frankly unpredictable, so it is imperative to have the guidance of a knowledgeable immigration lawyer who stays on top of the ongoing developments.