America’s Seasonal Worker Visa Program Desperately Needs an Update

At midnight, Eastern Time, on New Year’s Day 2019, while revelers were enjoying themselves in Times Square (or comfortably watching from home), immigration lawyers were in their offices, staring at a gray screen on their computers. Each of us was prepared to file preliminary applications for H-2B visas with the Department of Labor (DOL) when…their system crashed for a week.

The H-2B visa fills a vital role as the United States’ primary seasonal nonagricultural guest worker program. H-2B visas are available for temporary positions. The classic examples are seasonal positions that recur annually—landscapers, roofers, resort workers, seafood processors and even ice cream truck drivers all rely on this program—but visas can also be granted for up to three years for one-time projects where no permanent positions are being created. To request H-2B workers, employers first request a labor certification, an acknowledgment from DOL that there are insufficient US workers who are qualified and available for the temporary jobs in question. The applications can be filed no more than 90 days before the date of labor need and DOL requires employers attempt to fill positions by recruiting and advertising for US workers before it will grant the certification. These steps ensure US workers have preference over foreign workers for these positions and that employers will pay an appropriate wage for the occupation and location.

Congress authorized 66,000 H-2B visas annually in 1990 and, despite a dramatic expansion of the United States’ economy over the last three decades, the limit on those visas remains the same. There have been occasional changes over that time; half of the visas are now reserved for the second half of the year (starting April 1) and occasionally Congress authorized exempting returning H-2B workers from the annual total, and even twice authorized a one-year increase in the total. With a recent explosion of demand for H-2B visas, however, and without a permanent legislative fix, the system is at a breaking point. Visas that once remained available throughout the (October to September) year started disappearing in the early spring from 2015 through 2017.

Because of high demand, USCIS established a lottery for the spring 2018 H-2B visa allotment. In 2018, petitions requesting 47,000 workers were received within just five days in February, weeks earlier than the cutoff had ever been reached. For the first time, starting the labor certification process on January 1—90 days before April 1 and the earliest filing date for spring visas—was insufficient for employers to guarantee their summer jobs could be filled. Employers with over 30,000 open positions filed on January 1 weren’t processed quickly enough even to be entered into the lottery.

In 2018, USCIS permitted an extra 15,000 visas by Memorial Day, but this was too little too late for some employers. USCIS authorized less than a quarter of the additional visas they could and did not implement filing procedures until later summer. Since petitioning for H-2B workers presupposes the unavailability of US workers and since the cap mandated the unavailability of foreign workers, many employers were forced to scale back operations or shutter entirely because of USCIS’ failing to take advantage of their full legislative authority to grant tens of thousands of additional visas. In some cases, principally with the seafood industry, which dominates certain local economies, whole communities were affected by the lack of available workers who had been predictably available for decades.

DOL’s best solution for the second half of fiscal year 2019 was to announce in the summer of 2018 that they would timestamp applications to the millisecond and process in that order. While there is an air of fairness to a proposal that prioritizes applications by filing time, implementation was incompetent. The predictable congestion caused DOL’s online iCert filing system to crash within seconds of midnight on January 1, a time and date when they were wholly unprepared for such a system failure. When they brought it back online on the afternoon of January 7, the renewed urgency caused additional congestion, further delaying (by then) very motivated filers. In total, over 95,000 workers were requested by the end of January 7. Two-thirds of the requests will fail, many for no other reason than the stability of DOL’s computer systems that pushed them later in the queue and there are simply not enough H-2B visa numbers.

Continuing this system without change is unacceptable. Employers are unable to ensure their jobs will be filled, and even those who secure workers one year cannot guarantee that they will be able to repeat that success annually. Because the availability of workers is unpredictable, employers are avoiding contracts for work or breaking contracts they cannot fulfill without their workers. Innumerable small businesses are being crippled by the lack of available labor, while many others simply quit trying after repeatedly losing DOL’s annual horserace. Congress recognizes the deficiency in their cap, but has refused to permanently increase it; USCIS, given authority for temporary increases, fails to do so; and DOL has designed an inequitable processing system that can’t handle demand that was never conceived of when their current regulations were designed.

H-2B visas are a yeoman category, filling the broad gap between short-term business visitors and permanent, full-time workers in thousands of roles in dozens of industries everywhere in the United States. We cannot tolerate a permanent emergency in such an important program. If you’ve ever enjoyed a stay at a resort, or eaten delicious seafood, or smelled a freshly mowed lawn in the summer heat, you’ve connected with this visa program. Reach out to your congressional members and tell them to take action!

by Adam Greenberg