In a bid to solve the ongoing labor challenges facing U.S. businesses, the U.S. Department of Homeland Security and the Department of Labor are set to make an additional 64,716 H-2B temporary nonagricultural worker visas available for fiscal year 2023, on top of the 66,000 H-2B visas that are normally available each fiscal year. This announcement comes less than a year since the two departments made an additional 20,000 H-2B visas available for FY 2022.
By making these supplemental visas available at the outset of the fiscal year—which began on Oct. 1—DHS is looking to address employers’ needs for additional seasonal workers. “At the same time, DHS and DOL are working together to institute robust protections for U.S. and foreign workers alike, including by ensuring that employers first seek out and recruit American workers for the jobs to be filled, as the visa program requires, and that foreign workers hired are not exploited by unscrupulous employers,” the DHS and DOL said in a statement. To strengthen these efforts, DHS and DOL also announced the creation of a new White House-convened Worker Protection Taskforce.
“The Department of Homeland Security is moving with unprecedented speed to meet the needs of American businesses,” Secretary of Homeland Security Alejandro N. Mayorkas said in a statement. “At a time of record job growth, this full year allocation at the very outset of the fiscal year will ensure that businesses can plan for their peak season labor needs. We also will bolster worker protections to safeguard the integrity of the program from unscrupulous employers who would seek to exploit the workers by paying substandard wages and maintaining unsafe work conditions.”
In a statement issued after the announcement of the additional visas, the American Hotel & Lodging Association noted that this was the single largest expansion of the H-2B cap in recent history, and that the announcement comes “well in advance” of the filing deadlines for applications for the both the winter and summer seasons.
“As a co-chair of the H-2B Workforce Coalition, AHLA has been aggressively lobbying the Biden administration and Congress to expand the number of visas available through the H-2B visa program and provide meaningful cap relief for seasonal businesses,” AHLA President and CEO Chip Rogers said in an email to association members, noting that the organization had lobbied the administration to make an additional 55,000 H-2B visas available in FY 2022. “While these additional visas will provide crucial help to seasonal lodging businesses, we recognize they will not be enough to meet hoteliers’ labor needs in this competitive job market,” Rogers wrote. As such, the association will work to have more visas available in the future. “Filling open jobs is the hotel industry’s top priority, and AHLA and the AHLA Foundation remain focused on doing everything we can to help to grow the industry’s talent pipeline.”
Expansion Details
The H-2B supplemental visas includes an allocation of 20,000 visas to workers from Haiti and the Central American countries of Honduras, Guatemala and El Salvador. The remaining 44,716 supplemental visas will be available to returning workers who received an H-2B visa, or were otherwise granted H-2B status, during one of the last three fiscal years. The regulation will allocate these remaining supplemental visas for returning workers between the first half and second half of the fiscal year to account for the need for additional seasonal workers over the course of the year, with a portion of the second half allocation reserved to meet the demand for workers during the peak summer season.
The H-2B program permits employers to temporarily hire noncitizens to perform nonagricultural labor or services in the United States. The employment must be of a temporary nature, such as a one-time occurrence, seasonal need, or intermittent need. Employers seeking H-2B workers must take a series of steps to test the U.S. labor market. They must also certify in their petitions that there are not enough U.S. workers who are able, willing, qualified, and available to perform the temporary work for which they seek a prospective foreign worker. In addition, employers must certify that employing H-2B workers will not adversely affect the wages and working conditions of similarly employed U.S. workers.
Worker Protection Efforts
In a bid to prevent exploitative employment situations, the allocation will include several provisions to protect both U.S. and H-2B workers. For example, DHS will subject employers that have committed certain labor law violations in the H-2B program to additional scrutiny in the supplemental cap petition process. This additional scrutiny is aimed at ensuring compliance with H-2B program requirements and obligations.
To address these issues more broadly, the departments have created the H-2B Worker Protection Taskforce. Convened by the White House, the task force will focus on three concerns:
- Threats to H-2B program integrity;
- H-2B workers’ fundamental vulnerabilities, including their limited ability to leave abusive employment without jeopardizing their immigration status, and
- The impermissible use of the program to avoid hiring U.S. workers.
The departments will assess a variety of policy options to address these issues and will provide an opportunity for relevant stakeholders to offer input. The work of the task force will build on ongoing efforts in both departments to reform the H-2 temporary visa programs. In the coming months, DHS also plans to issue a notice of proposed rulemaking relating to the H-2 programs, which will incorporate policies that strengthen protections for H-2 workers.