The Annual Cap

One of the biggest challenges in obtaining H-2B visas is the annual cap. The US government only issues 66,000 H-2B visas per fiscal year, with 33,000 for the first half (October 1 – March 31) and 33,000 for the second half (April 1 – September 30). This means that the demand for H-2B visas often exceeds the supply, and many employers are left out of the program.

To deal with this challenge, employers should plan ahead, start working with an immigration lawyer well in advance, and file their petitions as early as possible. The filing window for H-2B visas opens 120 days (about 4 months) before the start date of employment. Employers should also monitor the cap count regularly and check the availability of visas on the US Citizenship and Immigration Services (USCIS) website.

A worker on an H-2B visa, dressed in a pink t-shirt and apron, chatting with a customer at the cafe's bar, holding a cup of coffee, highlighting cultural diversity in the workplace

Additionally, employers should consider alternative visa options, such as the EB-3 Visa sponsorship for permanent positions.

The Prevailing Wage

Another challenge in obtaining H-2B visas is the prevailing wage requirement. The prevailing wage is the average wage paid to workers in the same occupation and area of employment. Employers who want to hire H-2B workers must pay them at least the prevailing wage, as determined by the Department of Labor (DOL). This is to ensure that the wages and working conditions of US workers are not adversely affected by the hiring of foreign workers.

To deal with this challenge, employers should obtain a prevailing wage determination (PWD) from the DOL before filing their petitions. The PWD will specify the wage level and source of data used to calculate the prevailing wage. Our immigration lawyers will be able to help you with this.

Employers should also review the PWD carefully and make sure that it matches the job description and requirements of the position. If the PWD is too high or inaccurate, employers can request a redetermination or file an appeal with the DOL.

ski instructors h2b visa

The Labor Certification

Another challenge in obtaining H-2B visas is the labor certification process. The labor certification is a document that proves that there are no qualified and willing US workers available to fill the position and that the hiring of foreign workers will not harm the US labor market. Employers who want to hire H-2B workers must obtain a labor certification from the DOL before filing their petitions with the USCIS.

To deal with this challenge, immigration lawyers understand that employers must carefully follow the steps and guidelines of the labor certification process. The process involves conducting a recruitment campaign, posting a job order, placing advertisements, contacting unions and state workforce agencies, and reporting the results to the DOL. 

Employers should also keep records of all the recruitment efforts and documentation of the applicants, such as resumes, applications, interviews, and rejections. Employers should also be prepared to respond to any audits or requests for additional information from the DOL.

The Documentation Complexities

Another challenge in obtaining H-2B visas is the documentation complexities. The H-2B visa application process involves multiple forms, fees, and supporting documents that must be submitted to different agencies and offices. Employers who want to hire H-2B workers must file Form ETA-9142B with the DOL, Form I-129 with the USCIS, and Form DS-160 with the Department of State (DOS). Employers must also pay the required fees, such as the filing fee, the fraud prevention and detection fee, the education and training fee, and the visa fee. Employers must also provide supporting documents, such as the PWD, the labor certification, the employment contract, the employer attestation, and the proof of need.

Two landscaping workers on H-2B visas maintaining lush greenery at a construction site, embodying skilled international labor in the landscaping industry

To deal with this challenge, employers should consult with an immigration lawyer who can guide them through the documentation process and ensure that everything is complete and accurate. An immigration lawyer can also help employers with other immigration-related issues, such as sponsoring foreign employees through PERM and other employment-based immigration sponsorship pathways.

Current Trends And Issues Affecting The H-2B Visa 

We have discussed some of the common challenges and solutions in obtaining H-2B visas for seasonal workers. However, the H-2B visa program is not static. It is constantly evolving and facing new trends and issues that affect both employers and employees. 

In this section, we will explore some of the current developments and implications of the H-2B visa program, such as the impact of the COVID-19 pandemic, the changes in the regulations and policies, the lawsuits and litigation, and the advocacy and lobbying efforts.

The Impact of the COVID-19 Pandemic

The COVID-19 pandemic has had a profound impact on the H-2B visa program, as well as other work visas for the US and the overall immigration system. Due to travel restrictions, border closures, and health risks, many H-2B workers were unable to enter or leave the US, causing disruptions and delays in the hiring process. 

Moreover, due to the economic downturn, many employers faced reduced demand and revenue, forcing them to cut costs and lay off workers, including H-2B workers. Furthermore, due to the social distancing and quarantine measures, many H-2B workers faced challenges in finding suitable housing, transportation, and health care, exposing them to greater vulnerability and exploitation.

To mitigate the impact of the pandemic, the US government and immigration agencies have taken some steps and measures to assist the H-2B visa program. 

For example, the USCIS has temporarily extended the validity of some H-2B petitions and allowed some H-2B workers to change or extend their status in the US. The DOL has also temporarily relaxed some of the recruitment and documentation requirements for the labor certification process. 

Additionally, the DOS has granted some exceptions and waivers for the visa interviews and processing for some H-2B workers. However, these steps and measures are not enough to address the long-term and structural issues of the H-2B visa program, such as the annual cap, the prevailing wage, and the labor certification.

Immigration lawyers are better equipped to help you through the process.

A welcoming woman on an H-2B visa at a restaurant reception desk, adorned with festive decor, showcasing warmth and hospitality in a delightful setting

The Changes in the Regulations and Policies

The H-2B visa program is subject to frequent and often unpredictable changes in the regulations and policies, which affect the eligibility, availability, and conditions of the H-2B visas. These changes are influenced by various factors, such as the political climate, the economic situation, public opinion, and judicial decisions. 

Some of the recent and notable changes in the H-2B visa program are:

  • The Final Rule on the H-2B Wage Methodology
  • The Interim Final Rule on the H-2B Cap Allocation

The Lawsuits and Litigation

The H-2B visa program is also subject to various lawsuits and litigation, which challenge the legality, validity, and implementation of the H-2B regulations and policies. These lawsuits and litigation are filed by different stakeholders, such as the employers, the workers, the labor unions, the advocacy groups, and the state governments. 

Some of the recent and notable lawsuits and litigation involving the H-2B visa program are:

  • The Bayou Lawn & Landscape Services v. Scalia
  • The Gomez v. Trump

The Advocacy and Lobbying Efforts

The H-2B visa program is also subject to various advocacy and lobbying efforts, which seek to influence the direction, outcome, and impact of the H-2B regulations and policies. These advocacy and lobbying efforts are conducted by different stakeholders, such as employers, workers, labor unions, advocacy groups, and lawmakers. 

Some of the recent and notable advocacy and lobbying efforts related to the H-2B visa program are:

  • The H-2B Workforce Coalition
  • The National Guestworker Alliance

The H-2B visa is a valuable option for employers who need seasonal, non-agricultural workers. However, the H-2B visa application process is not easy. There are many challenges and obstacles that employers may face along the way. By planning ahead, obtaining a PWD, following the labor certification process, and consulting with an immigration lawyer, employers can overcome these challenges and streamline their journey for hiring temporary foreign labor.

Close-up of a woman wearing a glove while skillfully sanding wood, illustrating craftsmanship and dedication, powered by an H-2B visa

IBP Immigration Law Can Help With H-2B Visas

Are you looking for a work visa for the US, or want to apply for citizenship? Do you need an immigration lawyer to guide you through the process? 

Whether you are interested in the H-2B visa or another, such as an investor’s visa, the EB-1 extraordinary ability visa, the EB-2 national interest waiver, the EB-3 skilled worker visa, the E-2 visa through a franchise, or any other employment-based immigration option, IBP Immigration Law can help you achieve your goals. 

Contact us today or schedule a consultation online and find out your eligibility for employment-based green cards and more.

Attorney Ingrid Borges Perez speaks
English, Portuguese, and Spanish

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