Many employers traditionally have relied upon H-2B visa holders to augment their permanent workforce during seasonal and peak-load cycles simply because they cannot find U.S. citizen and Permanent Resident workers to handle the temporary assignments.   The H-2B temporary program generally allows U.S. employers who meet specific regulatory requirements to bring foreign nonimmigrant workers to the United States to fill temporary nonagricultural jobs.

Before requesting H-2B classification from the U.S. Citizenship and Immigration Services (USCIS), the employer must apply for and receive a temporary labor certification for H-2B workers from the U.S. Department of Labor (DOL) by demonstrating that there are no U.S. workers and that the wages will meet the prevailing U.S. wages for the position.  As previously noted on our blog and as a result of at least three court cases, on April 22nd, DHS and DOL temporarily halted processing until such time as they were able to issue a joint interim final rule (immediately effective) that establishes a new methodology for calculating prevailing wages.   DOL resumes issuing prevailing wage determinations, and USCIS resumes adjudicating H-2B visa petitions.  DOL will also now re-determine a “new” prevailing wage and will mail those determinations to employers—even those currently participating in the program.  The “new” wage will be significantly higher than that originally issued—clearly a broken system for employers that must rely upon the H-2B visa holders to get the job done!

It appears the “Gang of 8” in the Senate recognizes the limitations of the existing system.  S.744 contemplates H-2B reform: adding an exemption so that returning workers don’t count against the 66,000 annual cap, among other items.

More importantly, the proposed reform creates a new visa category: the W-visa.   It covers any occupation where typical preparation is less than a four-year university degree (or equivalency).  In other words, a nonimmigrant may now qualify for skilled and unskilled occupations   W-visa status is a “dual intent” classification, meaning, the W-visa holder can also seek permanent residency.

To request a W visa, an employer will register a position with the State Workforce Agency as well as on a new DOL website listing job postings nationwide.  The employer will certify that it is unable to fill the position based upon recruitment results.  Once a position is registered, an employer does not need to do any specific additional recruiting or take any other steps during the three-year registration period to activate the registered slot and hire a W-visa holder.  W-nonimmigrants must obtain status initially by becoming a “certified alien” through a State Department consular post outside of the U.S., but may extend status in the U.S. or renew a W-visa in three-year increments.

The proposed bill will cap visas during the first four years of the program at 20,000, 35,000, 55,000, and 75,000.  W-2 spouses may also be provided work authorization.  After the initial four years, the visa cap will hover—controlled by a congressionally-mandated formula—between 20,000 and 200,000 visas.

Additional allocations may be made for meat trimming, poultry trimming and fish cutting occupations.

More encouraging, employers may utilize the existing processes to petition for their W-visa holders to remain in the United States as immigrants.  The cap will initially set at 56,000 available immigrant visas for these workers.

Employers relying upon the H-2B visa category may rest much easier if the proposed W-visa category is signed into law.