The Role the H-2B Visa Plays in the U.S. Economy

The H-2B visa recently met its cap limit, highlighting the country’s need for labor.

The United States Citizenship and Immigration Services (USCIS) announced in late January that the H-2B visa program's 18,216 cap limit was successfully met due to the overwhelming amount of petitions received.

USCIS declared that, in accordance with the recent H-2B supplemental cap temporary final rule, it had received the required number of petitions for returning workers for the initial half of fiscal year 2023. The agency emphasized that it is still open to petitions for H-2B nonimmigrant visas dedicated specifically to citizens of El Salvador, Haiti, Guatemala, and Honduras. 

“We recently began accepting H-2B petitions under the Dec. 15 temporary final rule increasing the cap by up to 64,716 additional H-2B nonimmigrant visas for fiscal year FY 2023. Of the 64,716 additional visas, 44,716 were available only for returning workers. The remaining 20,000 visas are set aside for nationals of Haiti, El Salvador, Guatemala, and Honduras, who are exempt from the returning worker requirement,” the statement provided by USCIS reads.

Aside from applications for workers under the Haiti, El Salvador, Guatemala, and Honduras allotment, USCIS is also accepting petitions for personnel who are exempted from the cap. This covers petitions for current H-2B workers in the U.S. asking for an extension of stay. The types of workers included in the exemption include fish roe processors, fish roe technicians, and supervisors of fish roe processing and workers in the Commonwealth of Northern Mariana Islands and/or Guam.

News of the H-2B cap limit is important because the H-2B program is currently facing a crisis. For over 70 years, American employers have relied on the H-2B visa program for workers.

“The role of H-2B in the U.S. is of extreme importance,” said Ryan Bay, a managing partner at Global Immigration Associates, which is an affiliated law firm of Envoy Global.

Bay added, “It is all too common today to see our ‘Main Street’ stores with help wanted signs in the front windows. Restaurants cannot fill jobs, retail stores cannot fill jobs, meat and processing plants cannot fill jobs, and it seems any local employer who has a demand for these ‘low-skilled’ jobs cannot find Americans to fill the role.” 

The high demand for this kind of labor is illustrated by the fact that the number of applicants seeking seasonal work has skyrocketed, exceeding the visa limit by more than double. As a result, numerous positions remain unfilled, creating negative impacts on American businesses, consumers, and U.S. workers in other occupations. It does not help that the intricate and unpredictable application process has discouraged many potential applicants from participating.

Here is a quick overview of the H-2B visa program.

What Is the H-2B Visa?

Since 1952, American companies have employed foreign guest workers on H-2B visas to fill in seasonal or temporary positions that Americans were unwilling to take. Initially, strict regulations limited the number of participants until the late 1990s. However, as a growing number of Americans began to avoid such temporary positions, more businesses began to accept the H-2B visa's restrictive criteria as their sole option for finding legal workers.

H-2B visas provide a much-needed solution for the labor shortages facing various industries in the United States by allowing foreigners to come and work on non-agricultural projects. As such, this program is helping America stay competitive in many sectors. The H-2B visa provides a wide range of opportunities, from forest conservationists to fish cutters and carnival workers. With such an expansive selection available, it's no surprise that the application cap is quickly being filled.

In recent years, there has been a steady surge in national demand for H-2B employees—those certified to work in non-agricultural jobs for nine months out of the year. Last year, this trend was more pronounced than ever before. In 2022, the national demand for H-2B visas saw a 49.5% rise from 2021 numbers.

Despite the increasing need, the yearly limit on how many H-2B workers are accepted has not been altered since the 1990s. The yearly limit is set at 66,000 visas, divided into two parts across the year. For years, businesses have been pressing for a rise in the cap on workers, particularly as labor has become more difficult to acquire.

To be eligible for the H-2B visa, employers must prove that they have advertised the job vacancy to locals but were unable to fill it. This requires extensive documentation of their recruitment efforts. Employers must bear the additional costs associated with recruiting and employing H-2B workers, such as legal fees, a prevailing wage rate for their position, plus any travel or lodging expenses.

Businesses say that there are other factors that still make the H-2B and J1 recruitment process challenging, including a hyper-competitive market for staff and expensive legal fees.

“The H-2B visa requires employers to work with two, generally three, government entities,” said Bay of the H-2B application process. “The process, if all goes well, can easily take six months if not more. For example, we are advising employers who want to get people into the U.S. on/after October 1, 2023, to start the process now.” 

Despite the complications, the H-2B program can be advantageous for American employers who are unable to find domestic workers willing to work. But does the H-2B visa program need to change?

Does the H-2B Visa Need to Be Changed?

The quotas for business immigration visas have historically posed a significant challenge for both employers and employees. The employment-based quota system is intricate, with individuals being assigned priority dates and placed in a queue according to their immigrant visa category and country of origin.

Since its establishment in 1990, the per-country cap has limited the number of employment-based visas that any single country can receive to no more than 7% of the total yearly allocation. As these quotas have a disproportionate impact on a small number of countries, such as India, and have led to processing backlogs that can stretch for multiple years, there have been several attempts to eliminate them.

Similarly to employment-based immigrant work visas, there exist caps and quotas on crucial work visas such as the H-1B and H-2B non-immigrant work visas.

There is high demand for H-2B visas for seasonal employment, and the lack of available visas for low-skilled workers in year-round positions is only exacerbating the strain on the system. 

Despite the workforce shortages in various sectors, such as senior care, child care, nursing, hospitality, construction, meat and poultry processing, restaurants, retail, and manufacturing, there are currently no non-immigrant visas (NIVs) available for these workers. 

“The government needs to rethink the fundamental requirements of making employers show that the job is seasonal, intermittent, a one-time occurrence, or peak load,” Bay said.  

“While jobs are easy to classify in these categories, think resort workers or landscapers, others are not. Think restaurant workers or workers in meat processing plants. These businesses have a year-round need for these workers and there is simply no way they can fill these jobs.”

Although there have been attempts to address these concerns with bipartisan support in the Senate in 2006, 2007, and 2013, none of these efforts have proven successful. As a result, the U.S. economy is currently suffering the consequences.

“When I see the news stating unemployment is at an all-time low right now, that does not square with what we all see in our downtowns,” Bay said. “Employers need workers … let’s help them. That can be done with the H-2B.” 

Despite its challenges, the H-2B visa program plays a critical role in meeting the workforce needs of American businesses that cannot find willing U.S. workers. Without this program, many American businesses would undoubtedly suffer. Many critics of the H-2B program insist that policymakers must push changes to ensure the program's continued success.

These changes—including streamlining the application process and raising or eliminating the cap—could help the H-2B visa better serve both American employers and foreign workers seeking opportunities in the United States.