New H-2B Visas for Temporary Workers

On November 3, 2023, the U.S. Department of Homeland Security (“D.H.S.”) with support of the Department of Labor (“D.O.L.”) announced that it expects to make available an additional 64,716 H-2B temporary nonagricultural visas for Fiscal Year (F.Y.) 2024. This increase is in addition to the existing mandated 66,000 H-2B visas that are allotted each F.Y. The increase is the maximum amount permitted under the September 2023 F.Y. 2024 Continuing Resolution.

The H-2B program allows employers to hire foreign workers for nonagricultural labor or services on a temporary basis, to help them meet labor demands. The H-2B program is widely utilized by many industries, including hospitality, tourism, landscaping, and seafood processing.

This supplemental visa allocation aims to help address the need for seasonal or temporary workers in areas with no available work-authorized workers. By announcing the additional visas at the outset of the FY2024, businesses can plan ahead to ensure they find the seasonal workers they need to supplement their workforce. Given the time-sensitive nature of the H-2B Program and the limited number of visas available in the lottery each year, employers must plan in advance to increase their chances of being selected and securing these H-2B visas. Here are five ways employers can prepare for the upcoming fiscal year:

1. Identify the Start Date of Temporary Need: Identifying the start date of need is essential to the H-2B process, given that there are a number of steps that must be taken before obtaining a temporary labor certification (E.T.A. Form 9142) and filing the H-2B I-129 petition with USCIS. Establishing the targeted start date early allows for proper planning and coordination to avoid delays in processing and employment. It also helps determine when you should start the H-2B process, depending on if you are filing in the first half of the fiscal year (start date between October 1 and March 31) or the second half of the fiscal year (start date between April 1 and September 30).
2. Identify Type of Temporary Need: To meet the requirements to hire H-2B workers, employers must establish that their need meets the definition of “temporary need” under immigration law, which can be established using one of the categories below. Note that the job opportunity must be temporary, typically not exceeding nine months (except for a one-time occurrence).
   • Seasonal Need: The need for H-2B workers must be tied to a season of the year by event or pattern. The season must be of a recurring nature but is not limited to our traditional seasons of summer, fall, winter, and spring. It can also include Christmas season, fishing season, football season, etc., but it must be one that is predictable.
   • Peak-load Need: The need for H-2B workers must be tied to a short term or peak load demand. Unlike seasonal need, it does not need to be predictable, but employers must establish that the need for H-2B workers is meant to supplement or support their permanent staff. Employers must provide evidence of a full-time permanent workforce.
   • One-time Occurrence: The need for H-2B workers must stem from a one-time temporary event not expected to happen in the future but has necessitated a one-time temporary employment situation. The employer will must show that they have not hired workers in the past to perform the labor or services and will not need to hire them in the future. For example, a construction company may require a specific skill set not readily available in the local labor market to complete an upcoming project, and thus the employer may require temporary H-2B workers to complete the one-time project successfully.
   • Intermittent Need: The need for H-2B workers must not be a continual need, but rather the employer must show that it occasionally or intermittently needs workers to perform services or labor for a short period. The employer must provide evidence that they have not hired workers or staff in the past to perform the labor or services.
3. Identify Foreign Workers Needed: Once the employer has established the date and type of need, they must determine how many H-2B workers are required for each position to meet their labor needs. Doing so also helps employers plan for necessary resources, such as housing and transportation, which is required to be covered by employers in certain instances in the H-2B program.

Example – If a construction company wants to hire 40 H-2B workers for an upcoming project, they must specify how many workers are needed for each position (i.e., 20 Laborers, 9 Inspectors, etc.). A separate H-2B petition must be filed for each position.

4. Prepare the Prevailing Wage Determination (“P.W.D.”): Prior to submitting an H-2B temporary labor certification application, an employer must first obtain a prevailing wage determination for the specific H-2B position. The prevailing wage rate is the minimum hourly rate that must be paid to foreign workers. This rate can be obtained by submitting a prevailing wage request to the D.O.L. It can take over 45 days to process P.W.D.’s, so it is recommended that employers file their P.W.D. requests at least 60 days prior to the date of need.
5. Prepare Statement of Temporary Need: Employers must submit a detailed statement to the D.O.L. describing their temporary need. This statement is crucial to demonstrate that the employer’s need for temporary workers is legitimate and justified. The statement should also establish that the job opportunity is in fact temporary and not intended to displace U.S. workers. The statement should provide specific details about the employer’s operations, services, activities and information regarding their specific need (e.g., peak-load, seasonal, one-time occurrence, intermittent). Employers should supplement the statement with supporting evidence such as:

• Payroll records evidencing overtime paid to full-time staff,
• Staffing and workload data showing a breakdown of permanent staff and hours worked each month,
• Data on the employer’s annual historical need for such workers, and
• Copies of agreements or contracts evidencing deadlines or anticipated projects

Of the nearly 66,000 additional visas to be issued in FY2024, 20,000 H-2B visas will be allotted to workers from Honduras, Columbia, Costa Rica, Haiti, Guatemala, El Salvador and Ecuador. The 44,716 supplemental numbers for F.Y. 2024 will be available to those who have previously held H-2B status in the last three fiscal years.

The D.H.S., in consultation with the D.O.S., has published a new list of foreign countries whose nationals are eligible to participate in the H-2A and H-2B Program. Effective November 9, 2023, nationals of the following countries are eligible to receive H-2A and H-2B visas:

*Mongolia and the Philippines are eligible to participate in the H-2B program but are not eligible to participate in the H-2A program.

**Paraguay is eligible to participate in the H-2A program but is not eligible to participate in the H-2B program.

***Regarding all references to “country” or “countries” in this document, it should be noted that the Taiwan Relations Act of 1979, Pub. L. No. 96-8, Section 4(b)(1), provides that “[w]henever the laws of the United States refer or relate to foreign countries, nations, states, governments, or similar entities, such terms shall include and such laws shall apply with respect to Taiwan.” 22 U.S.C. § 3303(b)(1). Accordingly, all references to “country” or “countries” in the regulations governing whether nationals of a country are eligible for H-2 program participation, 8 CFR 214.2(h)(5)(i)(F)(1)(i) and 8 CFR 214.2(h)(6)(i)(E)(1), are read to include Taiwan. This is consistent with the United States’ one-China policy, under which the United States has maintained unofficial relations with Taiwan since 1979.

For employers seeking to apply for H-2B visas in the second half of FY2024 (with a start date after April 1, 2024), now is the time to initiate the H-2B planning process.