H-2B: More Visas Announced, But Many Strings Attached

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On March 5, the Department of Homeland Security (DHS) announced that it plans to make 35,000 supplemental H-2B visas available this fiscal year. Unfortunately, while the 35,000 visas would mark the highest number of supplemental visas that the Administration has chosen to release over the past few years, the number still falls woefully short of the needs of the landscape and horticulture industry. Further, the Administration has proposed adding redundant reviews by the Department of Labor and other restrictions that will severely limit the ability of many of our members to access these visas. DHS has announced that it will soon finalize these announced visas and policies in a temporary final rule. DHS also said that it plans to increase workplace compliance visits.

As of February 26 (the date on which DHS announced that the second 33,000 visa cap was reached was February 18), seasonal employers requested a total of 160,803 H-2B workers for fiscal 2020, 106,547 of which have been approved by the Department of Labor (DOL) with an additional 54,256 H-2B workers still pending. The first 33,000 visa cap was reached on November 15, 2019.

According to the DHS announcement, the supplemental H-2B visas will be made available in two tranches; 20,000 for companies with a date of need of April 1 and 15,000 for companies with a date of need after May 15. Additionally, 10,000 of the “first tranche” visas will be earmarked for nationals of Guatemala, El Salvador, and Honduras, countries whose workers that have not traditionally participated in the H-2B program. The second 10,000 visas in the first tranche will be limited to returning workers.

The second tranche of 15,000 visas will be limited to employers whose date of need is after May 15, despite the fact that the majority of seasonal employers have an April 1 date of need. The new restriction that requires matching start dates on an H-2B petition and the employer’s start date of need would likely require employers to begin the H-2B labor certification process over again and designate a new date of need even though their existing DOL-approved temporary labor certifications continue to be valid for post-April 1 work. These visas will also be limited to returning workers. This has not been a requirement in the previous three years that the Administration released supplemental visas.

Until a final rule is released, AmericanHort and the H-2B Workforce Coalition will continue to urge the Administration to eliminate the proposed restrictions on the supplemental visas. We also continue to urge Congress to pass H-2B reform legislation that ensures that the number of annual H-2B visas reflects the actual economic need for these visas.

Until a final rule is released, AmericanHort and the H-2B Workforce Coalition will continue to urge the Administration to eliminate the proposed restrictions on the supplemental visas. We also continue to urge Congress to pass H-2B reform legislation that ensures that the number of annual H-2B visas reflects the actual economic need for these visas.

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