New Opportunities to Hire Temporary Foreign Workers: The H-2B Visa Program Gets a Needed Boost

On April 20, 2021, the federal Department of Homeland Security announced the addition of 22,000 visas for the H-2B Temporary Non-Agricultural Worker program. This comes at a critical time in our nation’s history when businesses are working to reopen safely and are finding that workers are scarce. The Des Moines Register highlighted this issue in an April 20 article, “Des Moines restaurants face short staffing.”

H-2B Overview

The H-2B program is a useful tool for certain employers who have one-time, seasonal, peakload or intermittent needs for which they are unable to locate domestic labor. Congress has set the H-2B cap at 66,000 for each fiscal year, with 33,000 visas being available to workers who begin employment between October 1 and March 31. If the entirety of the 33,000 visas is not used for this timeframe, the unused visas are added to the 33,000 visas allotted for the second half of the fiscal year running from April 1 through September 30. Unused H-2B cap slots do not transfer from one fiscal year to the next, however, it is not uncommon for United States Citizenship and Immigration Services (USCIS) to receive enough petitions to meet the cap. USCIS received enough petitions to reach the cap for the fiscal year 2021.

Requirements for H-2B Visas

The H-2B program generally requires that:

• Workers are paid in accordance with a prevailing wage determination from the National Prevailing Wage Center.
• Employers conduct a test of the labor market before being awarded visa slots.

The main goal of the labor market test is to establish that there are not enough domestic workers who are willing, able, qualified and available to perform the duties of the position sought. The employer petitioning for the H-2B visa must not only certify to this but must also establish that hiring foreign labor will not adversely affect the wages and work conditions of domestic workers who are employed in corresponding positions within the organization.

New Visa Slots

It is anticipated that the additional 22,000 H-2B visas will be made available in the next few months. Per the Department of Homeland Security, the additional visas will only be available to employers that attest that if they do not receive workers under the cap increase, they are likely to suffer irreparable harm. Given the current labor shortage faced by so many employers in the United States, and especially in Iowa, this is not likely to present a hurdle. Additionally, we anticipate that employers will be permitted to transfer employees who are already in the United States in valid H-2B status into new H-2B employment without waiting for approval of the new employer’s petition. This would also be a welcome change for employers who have pressing labor needs.

The Big Picture

While the H-2B program carries some significant regulatory obligations, it can be a useful tool for employers who can identify and access foreign talent. Employers with questions should contact experienced immigration legal counsel.

Through the Global DSM: International Talent Strategy, The Partnership works to establish Greater Des Moines (DSM) as a global community attracting and retaining foreign-born persons to the region.

_{Blog post written by Beth Coonan.}