As U.S. companies struggle to find workers to fill their rosters, the Department of Homeland Security (DHS), in consultation with the Department of Labor (DOL), offered a reprieve through the authorization of supplemental visa numbers for the H-2B temporary non-agricultural worker program. Industries that may benefit from this “peak load need” visa boost include: hospitality, tourism, food services, construction, and landscaping services. These U.S. business sectors rely upon seasonal workers to meet consumer demands when U.S. workers are limited or unavailable, whether they are servicing customers at an amusement park or hotels across the country.

During each federal fiscal year (FY) starting on October 1, 66,000 H-2B visas are available for U.S. employers sponsoring foreign workers. These numbers are split off into 33,000 visas for workers who begin employment in the first half of the fiscal year (October 1 to March 31) and the other 33,000 for workers who begin employment in the second half of the fiscal year (April 1 to September 30). For FY 2023 (October 1, 2022 to September 30, 2023), DHS announced an additional supplement of 64,716 H-2B visas in addition to the already 66,000 H-2B visas regularly available.

Thus, DHS almost doubled the number of H-2B visas this year, which gives U.S. companies a better opportunity to meet their labor demands. In addition, 20,000 supplemental visas will be allocated specifically to workers from Haiti and the Central American countries of El Salvador, Honduras, and Guatemala. This allocation of visas to workers from these regions is consistent with the U.S./Mexico partnership on labor mobility and managing migration under the Biden Administration’s pledge included in the Los Angeles Declaration for Migration and Protection to expand legal options to irregular migration patterns.

In addition to the DHS announcement of supplemental H-2B visa numbers for FY2023, it announced that it will be working on instituting additional protections for both U.S. and foreign workers. U.S. employers who have committed labor law violations may be subject to additional scrutiny in the supplemental cap petition process. An H-2B Worker Protection Taskforce has also been created to focus on protecting the program’s integrity.

H-2B Visa Program Qualifications

The H-2B visa program is designed to assist U.S. employers in the sponsorship of foreign workers to fill temporary non-agricultural jobs in the U.S. As defined in 8 CFR §214.2(h)(6), in order to qualify:

(1) The U.S. employer must establish that there are not enough U.S. workers who are able, willing, qualified, and available to do the temporary work.

(2) In addition, the U.S. employer must establish that employing H-2B workers will not adversely affect the wages and working conditions of similarly employed U.S. workers.

(3) Finally, the U.S. employer must establish that it has a temporary need for foreign workers, which need is considered as temporary if it is a:

One-time occurrence

  • The petitioner must establish that it has not employed workers to perform the services or labor in the past and that it will not need workers to perform the services or labor in the future or,
  • That it has an otherwise permanent employment situation, but a temporary event of short duration has created the need for a temporary worker.

Seasonal need

  • Services or labor is traditionally tied to a season of the year by an event or pattern and is recurring.
  • Must also specify the period(s) of time during each year in which it does not need the services or labor.
  • The employment is not seasonal if the period during which the services or labor is not needed is unpredictable or subject to change or is considered a vacation period for the petitioner’s permanent employees.

Peak load need

  • Regularly employs permanent workers to perform the services or labor.
  • That it needs to supplement its permanent staff at the place of employment on a temporary basis due to a seasonal or short-term demand.
  • That the temporary additions to staff will not become a part of the petitioner’s regular operation.

Intermittent need

  • It has not employed permanent or full-time workers to perform the services or labor, but
  • Occasionally or intermittently needs temporary workers to perform services or labor for short periods.

These alternatives must be reviewed carefully for compliance as well as supported by acceptable documentation.

H-2B Eligible Countries

 U.S. employers may only file H-2B petitions on behalf of nationals of certain countries. The DHS publishes the list of eligible countries in a Federal Register each year, which is only valid for one year from publication. On November 10, 2022, DHS announced the new list of countries whose nationals may participate in the H-2A and H-2B visa programs for FY2023. The Kingdom of Eswatini was added. Note that nationals from Mongolia and the Philippines may only participate in the H-2B program, while nationals of Paraguay may only participate in the H-2A program. The H-2A program is for agricultural workers.

Effective November 10, nationals of the following countries are eligible to receive H-2A and H-2B visas (note exceptions below):

Andorra The Kingdom of Eswatini Madagascar Saint Lucia
Argentina Fiji Malta San Marino
Australia Finland Mauritius Serbia
Austria France Mexico Singapore
Barbados Germany Monaco Slovakia
Belgium Greece Mongolia* Slovenia
Bosnia and Herzegovina Grenada Montenegro Solomon Islands
Brazil Guatemala Mozambique South Africa
Brunei Haiti Nauru South Korea
Bulgaria Honduras The Netherlands Spain
Canada Hungary New Zealand St. Vincent and the Grenadines
Chile Iceland Nicaragua Sweden
Colombia Ireland North Macedonia Switzerland
Costa Rica Israel Norway Taiwan***
Croatia Italy Panama Thailand
Republic of Cyprus Jamaica Papua New Guinea Timor-Leste
Czech Republic Japan Paraguay** Turkey
Denmark Kiribati Peru Tuvalu
Dominican Republic Latvia The Philippines* Ukraine
Ecuador Liechtenstein Poland United Kingdom
El Salvador Lithuania Portugal Uruguay
Estonia Luxembourg Romania Vanuatu

 

As with any immigration sponsorship, advance planning is of the utmost importance. The H-2B visa process involves multiple steps with strict timelines to meet. If interested in using the H-2B program, immigration counsel should be contacted months in advance to start planning before the new fiscal year begins.

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About the Author:

Suzanne Sukkar’s practice focuses on global workforce mobility, employment-based sponsorship and visa matters, immigration audit and compliance for corporate and individual clients across a vast array of industries. She renders expert strategic and tactical counsel to a broad clientele base including visa matters for client’s employees at all levels of the corporate organizational structure, from the highest level executives to the entry-level business professional, investors. She developed a niche expertise in the area of E treaty trade and investor visas, consular processing, and start-up ventures. She may be reached in our Ann Arbor office at 734.623.1694. Visit Suzanne’s bio here.

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