DHS & DOL: H-2B Visa Program Expands for FY 2019

Together, the Department of Homeland Security (DHS) and the Department of Labor (DOL) published a joint rule permitting an additional 30,000 H-2B temporary non-agricultural worker visas for fiscal year 2019 (FY 2019). However, this expansion comes with a condition: the additional visas will be made available only to those returning workers who have previously received approval for an H-2B visa in FY 2016, FY 2017, and FY 2018. Only businesses that require H-2B workers, and would otherwise be un-operational without the program, are allowed to benefit from the expansion. Thus, applications will be restricted to those businesses who would “suffer irreparable harm without the additional workers.”

Returning Workers

According to USCIS, H-2B workers who return via the same work visa program are more likely to abide by the terms and conditions established by DHS and DOL, and thus present a lower risk of unauthorized work and a lower risk of overstaying their visa. The expansion targets those businesses that depend on the H-2B visa program because many H-2B workers return to the same employer annually or during the peak seasons. The 30,0000 additional visas will serve H-2B workers who have been vetted, thus expediting the approval process.

DHS Message to Congress

For decades, visa program caps set by federal legislation have blocked businesses from fulfilling labor demands. The H-2B visa program serves to fill the gaps in economies with U.S. worker labor shortages in certain industries. However, the cap typically does not fulfill annual and seasonal demand. In statement, the Acting Secretary for DHS, McAleenan, urged lawmakers to “pursue a long-term legislative fix that both meets employers’ temporary needs while fulfilling the president’s Buy American and Hire American executive order to spur higher wages and employment rates for U.S. workers.” The decision to expand visa programs ultimately lies in the power of congress. Although the DOL and the DHS may allow supplementary visas, this still puts businesses at a disadvantage who do not meet the original cap. “Congress – not DHS – should be responsible for determining whether the annual numerical limitations for H-2B workers set by Congress need to be modified and by how much, and for setting parameters to ensure that enough workers are available to meet employers’ temporary needs throughout the year.” While the cap remains, as of May 8thpetitioners can now filed a for these additional H-2B visas for the time being.