The H-2B visa program is used by employers to hire temporary and seasonal foreign workers for nonagricultural labor in the United States. The H-2B visa was developed from an earlier H-2 program which facilitated the entry of nonimmigrant workers in sectors that were experiencing workforce shortages. In 1952, the Immigration and Nationality Act provided the language that made it permissible for employers to recruit nonimmigrant workers if the Sectary of State and the attorney general certified that there were not enough sufficient or capable U.S. workers to do the job. That statutory language enabled U.S. employers to find and hire foreign temporary laborers during periods of shortages while also being a legal migration channel for the foreign worker to legally enter the United States to participate in the U.S. labor market.
The 1986 Immigration Reform and Control Act divided the H-2 guestworker visa program into two distinct categories of H-2A and H-2B for agriculture and nonagricultural workers, respectively. While the general premise of the visa remained the same, Congress separated the H-2 visa program due to an increased pressure to protect agricultural laborers. When the H-2 guest-worker program was separated, Congress determined that the statutory language governing H-2A visas “did not meet the interest of agricultural employers and workers,” while the regulations governing the H-2B program was kept the same. A congressional report specified that the H-2B program was working “reasonably well” and no changes to the program were necessary.
The H-2B is a relatively small visa program, capped at 66,000 per year. The REAL ID Act of 2005 divided the H-2B visa category semi-annually, allocating 33,000 visas for seasonal workers from October 1-March 31, and the remaining 33,000, including the unused visas from the first half of the fiscal year, to seasonal workers from April 1-September 30. This change was meant to preserve visas for employers whose seasonal need was later in the fiscal year. However, certain foreign workers such as those currently in the United States on an H-2B visa seeking work extensions, those counted towards the cap in the same fiscal year, fish roe processors, technicians, and supervisors, and workers in the U.S. territories are not counted towards the overall cap.
In 2009, two bills were introduced in Congress to reform the H-2B program. The bills, H-2B Program Reform Act of 2009 and the American Wages and Benefits Act of 2010 sought to amend the INA and wage requirements for admitting H-2B workers in the United States. The Program Reform Act, which never reached the House floor, would have required prospective H-2B employers to register with the Department of Labor, so that the agency could designate the number of H-2B positions each employer could use. Likewise, the American Wages and Benefits Act would have set new H-2B wage requirements. It would allow employers to only hire H-2B workers for occupational classifications that have demonstrated a specific level of wage growth in the previous years. The act would also subject employers to the three-fourths guarantee; mandating employers to pay foreign workers no less than three-fourths of the workday wages listed on the job order in each 12-week period.1 However, in subsequent years, lawmakers have successfully enacted several expansions of the H-2B caps in fiscal years 2017, 2018, and 2019. The bills authorized the Department of Homeland Security to make additional visas available for H-2B work, in its discretion. For example, in FY2017, DHS, in conjunction with DOL, authorized an additional 15,000 H-2B visas beyond the available cap.
The program is administered by a multi-agency process consisting of three distinct agencies: DHS, DOL, and the United States Citizenship and Immigration Services. Employers looking to hire foreign workers to fill in labor shortages that are temporary and seasonal—but not agricultural—in nature are allowed to do so by first completing the labor certification process with DOL. To qualify for seasonal labor, the requested job must be at a certain time of year that required a high volume of labor to fulfill the nature of the work. Similarly, temporary positions cannot exceed a duration of more than one year, except for exceptional circumstances.
H-2B Labor Certification
The language protecting U.S. workers and employees participating in the H-2B visa program appears in DHS regulation which directs the employer to file an application for foreign labor certification with DOL. Labor certification for the H-2B visa program is a two-step, rigorous process that includes both employer registration and foreign worker application processes. Both the registration and application steps are in place to ensure that the program adequately protects U.S. workers who may be available for the job.
DOL requires that employers submit the H-2B registration 120 to 150 days before the employers need the worker for the position. Once approved, the employer then submits an application to the Employment Training Authority and a work order to the State Workforce Agency who places an electronic job offer in its interstate clearance system. The purpose of the application and the work order is to assist ETA to determine if there are any available U.S. workers capable or willing to take the position. Additionally, ETA will require employers to conduct other recruitment of U.S. workers, including contacting former employees, and accept referrals and applications until 21 days prior to the start of the employment.
The labor certification process is not only designed to protect U.S workers from being displaced, but also to provide labor protection for foreign workers. The certification process requires employers to pay temporary foreign employees the higher of the prevailing wage rate for the job in the area of employment or the federal, state, or local minimum wage. Employers must also comply with the “three-fourth” which protects the employees if their hours are curtailed after starting the job. The employers also must pay the foreign workers’ visa, lodging and meals necessary while traveling to the place of employment,2 and transportation-related fees. The certification process requires that the employer only terminate the job offer if they receive prior approval from DOL and they must try to transfer the foreign worker to another comparable employment opportunity or provide them with transportation services to their last place of residence.
Bringing foreign temporary workers on an H-2B visa can be a lengthy process taking months. Even when labor market tests prove that there is a labor shortage for a particular occupation, employers are unable to permanently sponsor H-2B workers for a green card.3 If an employer begins the green card sponsorship process for employees on H-2B visas, it could result in the rejection of a new temporary visa. H-2B visa holders may only remain in the country for up to three years, after which they must leave the United States for 90 days before being eligible to reapply. Employers are required to conduct labor certification for the same occupation each year, and the prior certification has no bearing on the requirement for a new labor certification if an employer seeks to sponsor an H-2B worker for a green card.
Overall, in FY2020, the occupation with the largest number of jobs in H-2B labor certifications were for landscaping and groundskeeping workers with approximately 74,000 approved labor certifications, around 46% of total approved certifications. A distant second category is for forest and conservation workers with around 11,000 certified labor certifications (Figure 1). Geographically, Texas had the highest number of H-2B labor certifications at around 19,000 and the state of New York rounds out the top 10 states with approximately 5,000 H-2B labor certifications (Figure 2).
Since DOL’s Office of Foreign Labor Certification discontinued the publication of its annual reports in 2016,4 most recent detailed data on the states’ use of H-2B visas are lacking. However, data from the FY2016 report shows that the majority of the H-2B certifications issued for the top 10 states were for landscaping and groundskeeping workers, with exceptions in Alaska and Florida which had the highest labor certifications for meat, poultry, fish cutters and trimmers (Alaska), and restaurant wait staff (Florida).
States like Alaska, which has a large seafood industry, rely heavily on seasonal and temporary H-2B visa workers for fish cutters and trimmers. Alaska’s seafood industry is a vital part of the state’s economy and represents 60% of U.S. commercial fisheries. In 2017-2018, the state’s seafood industry generated around $5.6 billion in economic revenue while directly employing approximately 58,000 people and creating 10,000 secondary jobs related to the industry. Filling all of the temporary and seasonal jobs Alaska’s seafood industry with U.S. workers can be a challenge, and the state heavily relies on H-2B visas to meet shortages. However, high demand for seasonal workers in other industries such as landscaping and groundskeeping in more accessible and temperate locations can prevent states like Alaska from obtaining its needed workers. Moreover, the annual cap of 66,000, which was not increased for FY2020, meant that obtaining H-2B workers was a competitive process among all employers across the country in every industry.
Even for the most popular industry that utilizes H-2B visas, landscaping and groundskeeping, the H-2B cap has meant shortages in filing seasonal landscaping jobs, especially in years when the U.S. economy has been strong and the demand for foreign temporary workers has increased. Even the 15,000 additional visas released by DHS, in excess of the cap in past years, is not always sufficient to fulfill the demand for foreign guest workers, as was the case in 2018, according to the National Association of Landscape Professionals.
However, while the bulk of H-2B employers are in the landscaping and groundskeeping industry, other employers use H-2B visas in smaller numbers to satisfy labor demands for industries that are critical for a state’s economy. Employers in smaller states such as Vermont use the H-2B visa program mostly for the hospitality industry, including hotels and ski resorts. In FY2016, the top three occupations sponsored under the H-2B visa program in Vermont were for maids and housekeeping cleaners, cooks and cafeteria workers, and waiters and waitresses. Furthermore, Vermont, which relies on tourism year-round as a major source of income, has found it difficult to meet seasonal labor demands due to the semi-annual allocation of H-2B visas. For example, in FY2019, USCIS announced that the H-2B cap for that fiscal year was reached on February 19, 2019, and any remaining H-2B employment requests under the cap that requires the employment start before October 1, 2019 would not be reviewed, leaving many employers without the summer seasonal assistance they required.
According to H-2B statistics from FY2020, forest and conservation workers are the second highest-demand occupation in the H-2B visa program. In FY2016, in states like Alabama, Arkansas, Idaho, California, Maine, New Mexico, Oregon, South Carolina, and Washington, which together account for much of the United States’ natural lands and resources, forest and conservation workers were one of the top three H-2B occupations. Temporary guest workers on H-2B visas help restore forests that are destroyed by natural disasters or emptied by logging. According to the Forest Resources Association, only 2% of advertised reforestation jobs are taken up by U.S. workers annually.
In 2020, the Trump administration suspended several guestworker programs, citing U.S. labor market woes, including the H-2B visa program. Without foreign workers, it was estimated that next year at least 1.6 million acres of land would go unplanted and around 1.1 billion seedlings would need to be destroyed. Forest and conservation workers are the essential fabric to our environmental conservation work, supplemented by H-2B visa guest workers. Given the recent wildfires and natural disasters in states like California that destroyed millions of trees, programs that help buttress forest conservation and management could be more necessary than ever.
The H-2B visa program’s core function is to help provide U. S. businesses with willing and qualified temporary foreign workers to fulfill labor demands when there are no U.S. workers to take the job. But, participation in the program also helps foreign workers improve their own livelihoods in their home countries.5 The remittances that foreign workers send back, who migrate largely from poor communities with persistent poverty, help foreign workers’ families and their community with improvements in health, education, and nutrition. The H-2B visa program also provides foreign workers with a consistent source of employment and income at the prevailing wage rate that they can rely on, albeit seasonal. The program is one of the few legal and viable routes for foreign workers with lesser education or job training skills to access the U.S. labor market, which in turn can drive down undocumented migration from countries like Mexico and Guatemala, which were among the highest H-2B visa recipients in FY2019.
H-2B visas can be instrumental in helping businesses in the United States thrive, especially in remote and smaller states where businesses find it difficult to fill labor shortages with native- born Americans. Research suggests that higher H-2B visa demands correlate with higher U.S. employment rates; a one percent growth in employment correlates with adding 216 additional H-2B workers, and unemployment rates in counties with higher H-2B employers were 0.4 percentage points lower than in counties without H-2B employers, debunking the myth that H2B workers take jobs away from Americans. Employers’ reliance on H-2B visas for business sustainability is clear in a recent report by the Government Accountability Office in April 2020, where employers they surveyed have suggested that any decrease in the number of expected H-2B visas does significantly impact their business decisions. Moreover, in some industries such as the seafood industry, employers who did not acquire the requested number of H-2B workers, due to the cap, reported revenue decline and loss of customers and contracts in FY2016.
However, the H-2B program in its current form has not been free of controversy. Employers have argued that the uncertainty of whether businesses would be approved of the required H2B visas under the cap, exacerbated by the lottery system, makes the current visa system inequitable. Moreover, a rigid labor certification test requires employers to prove there are not enough U.S. workers willing to take the job, so a cap in addition to the certification makes the H-2B visa process redundant, overly bureaucratic, and cumbersome. Some business owners in the GAO survey suggested that the visas should be distributed fairly under the cap, while some elected officials have recommended increasing the cap6 in past years to support small businesses.
Elected officials on the other end of the argument claim that the visa program, in its current form, is not rigid enough and fails to protect American citizens, while in some cases being subject to labor violations. Proponents of regulating the H-2B visa claim that foreign workers on H-2B visas perform low-wage work that takes jobs away from Americans, though the GAO report from April 2020 signals to the contrary. Advocates of regulating the visa also state that tying the foreign worker to their employer through visa sponsorship makes the program exploitative towards foreign workers. A GAO report from March 2015 on H-2A and H-2B visas does confirm some violations by employers who charge workers excessive fees for recruitment, provide inaccurate job information, and wages paid. However, whether these violations are selective or industry-wide is controversial. For example, while labor unions contend that H-2B visas routinely expose foreign workers to abuses and companies hires foreign workers for cheap labor, proponents of decreasing H-2B visa regulation claim that a majority of employers are in complete compliance with the program and that most H-2B violations are just minor infractions. Proponents further argue that higher regulations would lead to more violations, and hiring of unauthorized workers, not less.
Whatever grievances experts on either end of the H-2B debate may have, one can safely argue that the program, if managed adequately, can be a win-win situation for migrants, businesses, and the U.S economy. The H-2B program is also one of the few avenues that foreign workers, especially those from poor countries, can use to access the U.S. labor market, significantly improving their lives at home and driving down illegal border crossings. However, the H-2B program, in its current iteration, is in need of major reform. Since its inception in 1986, the visa program has remained the same, whereas our labor trends and needs have changed significantly. A deeper look at how the program can meet our current labor needs in a way that protects employers, U.S. workers, and migrants, while keeping the visa program fair and equitable for U.S. businesses and workers, is necessary.
1 The three-fourths guarantee was later published as an Interim Final Rule by the Department of Labor in 2015 but blocked from going into force by language included in subsequent appropriations bills.
2 For a mobile workforce, such as carnival and forestry workers, employers may also be obliged to incur the iterant workers cost of lodging if providing lodging is determined to primarily benefit the employer.
3 People with visas that do not fall under the dual intent category, such as the H-2A and H-2B visas, must prove that they intend to voluntarily return to their foreign residence at the end of their authorized stay; taking steps toward a green card can be used to cancel or deny their current nonimmigrant status.
4 DOL only continues to publish yearly selected statistics on total labor certifications issued.
5 The study is based on the H-2B program’s impact on the local livelihood of Guatemalan forest and conversation workers in Alabama.
6 Increasing the cap by utilizing unused available visas.