The H-2B visa shortage continues, impacting thousands of U.S. businesses around the country. H-2B visas are used widely in hospitality and tourism, landscaping and the construction industry to hire foreign workers for temporary nonagricultural work.  There are 66,000 available annually – half for the winter season and half for the summer season.

The first step to obtain an H-2B visa is to file a labor certification with the Department of Labor.   In the first day of the year, the DOL received requests for labor certifications that would have represented 88,000 workers – well beyond the statutory quota and the resources of the DOL.  As a result, the DOL held any approved labor certifications until February 20, 2018. This created a wave of H-2B applications to USCIS on February 22 and February 23.  On February 28, 2018, without any prior announcement, the USCIS conducted a random lottery to select the petitions that would be adjudicated. The next day, the USCIS announced it had received enough petitions to fill the 33,000 spots for the upcoming summer season.  This has left tens of thousands of jobs unfilled and U.S. companies scrambling to find a solution.

Representative William R. Keating (D-MA) who represents Cape Cod and has long advocated for increasing the number of H-2B visas available seemed frustrated by this last minute decision. “You can’t schedule inventory, hire local personnel, or market a business based on a last-minute lottery. . . .Thousands of businesses across the country will not be able to fully operate without H-2B worker assistance.”

In 2017, in response to requests and lobbying efforts from businesses that need seasonal workers, Congress gave then-Secretary of the Department of Homeland Security John Kelly authority to release more visas. Kelly held off but at the last moment released an additional 15,000 visas.  This year, as Congress negotiates in another effort to avoid a government shutdown, attempts are being made to amend the omnibus spending bill to increase the number of H-2B visas.

Senators Tim Kaine (D-Va.) and Thom Tillis (R-N.C.) are advocating to increase the H-2B visa numbers from 66,000 to 90,000 while Representative Andy Harris (R.-Md.) would like to raise the cap to 120,000. Moves of this sort seem to be supported by House Speaker Paul Ryan (R-Wisc.) and, if included in the omnibus spending bill, could increase the numbers available for this year and possibly beyond.  Senator Chuck Grassley (R-Iowa) is interested in adding an exemption from the cap for workers who are involved in disaster relief work in states that have suffered from major disasters this past year.

The March 23 budget deadline is practically upon us and a shutdown may be imminent. There are a number of issues beyond the H-2B visa program that are holding things up including two other immigration issues:  border wall funding and DACA.

Jackson Lewis will continue to provide updates regarding Congressional action.