On May 14, 2018, the final rule related to H-2B cap relief for fiscal year 2018 was transmitted to the Office of Management and Budget for review. The final rule was published in the Federal Register on Thursday, May 31, 2018. It allowed for an additional 15, 000 visas for employers who suffered “irreparable harm” as a result of not being able to obtain visa employees. As proof of this harm, employers are required to gather supporting evidence of this harm and in the case of employers requesting an April 1 through an April 14 start date to also perform an additional test of the labor market to once again ensure a shortage of domestic labor.
Unfortunately, USCIS received petitions for more beneficiaries than the number of H-2B visas available under the supplemental cap. This occurred within the first five days following the visa release, which set up USCIS to conduct a lottery to randomly select the petitions for H-2B visas. Employers praying for relief might once again be stymied in their efforts.
Data shows that the U.S. Department of Labor, the office charged with issuing Temporary Labor Certifications, certified the bona fide need for 142, 113 H-2B workers, including 89,001 H-2B workers requested to start employment on April 1, 2018. Clearly, the issuance of 15,000 visas in addition to the 33,000 allotted for the 2018 fiscal year amounts to only a small measure of relief for employers.
What is a small business owner to do under these circumstances? Close their doors? Turn away a portion of their workload? Continue to lobby Congress to enact permanent relief for the H-2B program?
Turning down business for lack of labor/or suspending business operations altogether doesn’t seem to comport with President Trump’s promise to “Make American Great Again”.
But, political divide in Washington, D.C. over the very existence of the H-2B program continues to rattle the cages of those charged with its management and potential growth.
Senators Durbin (D-IL), Cotton (R-Arkansas), Blumenthal (D-Connecticut) and Grassley (R-Iowa) wrote Secretary of Homeland Security Kirstjen Nielsen and Secretary of Labor Alexander Acosta on June 6, 2018 to express their concern regarding a major increase in the number of H-2B temporary nonagricultural visas issued without "improving protections for American workers and visa holders and increasing enforcement of wage and workplace safety laws."
Pro H-2B advocates point to an historic low unemployment rate (3.8% nationally, and even as low as 1.9% in some part of the country) as evidence of the country’s need for the program while anti H-2B proponents point to the vulnerability of workplace abuse, human trafficking and debt bondage as rational to decrease employer reliance on the H-2H program.
Program facilitators need to understand both the needs of small business owners and the needs of the American workforce, a tricky balance act indeed.