Back to Top skip to main content
Green and Spiegel - An Immigration Law Firm - United States
Jun 8, 2018

The H-2B Temporary Work Visa – Is Partial Relief Better Than No Relief?

Amy Jill Novak

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.

Related Team

Recent Blogs

Oct 19, 2020

USCIS Announces Increased Premium Processing Fees Effective October 19, 2020

Starting October 19, 2020, the fee for Premium Processing, will be $2,500 (previously $1,440) for all filings except those requesting H-2B (non-agricultural seasonal worker) or R-1 (Religious Worker) status, for which the new fee is $1,500 (previously $1,440).Any filings post-marked on or after October 19th must include the new fee amount. Any Form-1-907 postmarked on or after October 19th with the incorrect fee amount will be rejected and the fee returned.

Oct 13, 2020

US and European Partners are Moving Towards Reopening Transatlantic Travel by Adopting New Pandemic Protocols

KEY POINTS: • Foreign nationals who wish to travel to the United States from Europe either must fit into one of the travel restriction exceptions or obtain advance permission to board a plane to the U.S. • In the alternative, they may travel to a third country and quarantine there for two weeks prior to coming to the United States. • The U.S. and overseas partners are anxious to relax those restrictions. Advanced COVID-19 airport testing may provide a solution. • We expect some testing of these technologies followed by the announcement of new travel protocols in time for the winter holidays.

Oct 09, 2020

Biden Vs. Trump Comparison

As we approach the November elections it has never been clearer that this country faces upheaval and challenges that will bring about dramatic, lasting, and hopefully vital changes to our nation and its people. Here, we compare how the two candidates have and will handle immigration policy in the United States.