Updated: Oct 18, 2022
On October 12, 2022, the DHS (U.S. Department of Homeland Security) said in an announcement that, after consulting with the DOL (U.S. Department of Labor), it plans to issue a regulation that will add another 64,716 H-2B non-agricultural worker visas to the usual number of 66,000 that are normally issued during a fiscal year.
By making such a large number of additional visas available at the start of the new fiscal year (which started on the 1st of October), the department is taking swift action to make sure enough additional seasonal workers will be available to meet employers' needs.
At the moment DHS is also working with the Department of Labor to put in place strong protection measures for both American and foreign workers. One of the ways in which this is done is by making sure that U.S. employers will first seek out and recruit local workers for the jobs that become available (as required by the visa program). Steps are also taken to make sure that foreign workers that are employed in the United States will not be exploited by unethical employers.
To make sure these measures will be effective, the Department of Homeland Security and the Department of Labor at the same time also announced the establishment of a WPT or Worker Protection Taskforce.
Alejandro N. Mayorkas, the U.S. Secretary of Homeland Security, said that during a period when U.S. job opportunities were growing at a record rate, the additional allocation of workers at the start of the fiscal year will help to make sure that businesses in the United States can better plan for their labor requirements during the peak season.
Mayorkas added that they would at the same time strengthen worker protections to help safeguard the program's integrity against unethical employers who might try to exploit the workers by paying them below-standard wages or not providing a safe work environment.
The additional non-agricultural work visas will include a total of 20,000 new visas for jobseekers from countries such as Haiti and Central American nations like Guatemala, Honduras, and El Salvador.
The news comes after the Biden Administration (under the Los Angeles Declaration for Migration and Protection) earlier promised to provide additional avenues to those who would like to work in the United States legally instead of migrating illegally.
The announcement came after American President Joe Biden and Mexican President López Obrador jointly committed themselves to work together to provide more opportunities for circular and seasonal labor and to help make sure that migration will remain a choice instead of a necessity.
This is only one of several ways in which the U.S. and Mexico are working together to stimulate economic growth while at the same time properly managing migration as agreed upon in the bilateral working group where issues such as labor mobility are discussed.
U.S. businesses in industries ranging from tourism and hospitality to seafood processing, and landscaping to a large extent rely on seasonal workers to help them meet consumer demand. The decision to make additional seasonal visas available will help to address the demand for seasonal workers in fields where there are not enough American workers available and it will also help to stimulate the U.S. economy.
Apart from the 20,000 visas that will be reserved for citizens of the Northern Central American nations and Haiti, the other 44.716 additional visas will be allocated to workers who were earlier granted an H-2B visa, or who otherwise received H-2B status during any of the last 3 fiscal years, and now want to return to the United States.
The regulation will allow for the remaining additional visas to be allocated to returning workers between the first and the second halves of the new fiscal year in such a way that it takes into account the need for extra seasonal workers during that time of the year. A percentage of the allocation during the second half of the year will be reserved in such a manner that there will be sufficient additional workers during the peak summer months.
The H-2B program makes it possible for employers to hire temporary staff from other countries to carry out non-agricultural work (or perform non-agricultural services) in the U.S. The work has to be of a temporary nature, for example, seasonal labor, once-off jobs, or intermittent work.
Employers who want to employ H-2B workers have to take a number of steps to test the American labor market. They also have to certify in their applications that there are not sufficient numbers of local workers who are available, qualified, willing, and able to do the temporary work for which they are seeking to employ foreign workers.
Apart from that, employers also have to certify that giving temporary work to H-2B workers will not have an adverse effect on the working conditions and/or wages of U.S. workers in similar employment.
The Departments of Labor and Homeland Security are aware that H-2B workers are facing structural disincentives to leaving or reporting abusive working conditions. They also often do not have the necessary power to demand the right treatment when they are faced with abusive employment conditions.
Both these departments have in the past emphasized the importance of safeguarding H-2B workers against abuse and exploitation and making sure that, as the law requires, employers do not refuse to recruit or hire American workers who are available, willing, able, and qualified to do the temporary work in question.
The planned rule that will implement this allocation will include various provisions to help protect the interests of both American and H-2B workers. One example is that the Department of Homeland Security will subject employers who have made themselves guilty of certain types of labor law violations in the H-2B program to even stricter scrutiny measures during the supplemental cap petition process. The unusually strict scrutiny aims to ensure that these employers comply with the obligations and requirements of the H-2B program.
In order to address the above-mentioned issues on a wider basis, DOL and DHS also announced the establishment of the H-2B Worker Protection Taskforce (from here on simply called the 'Taskforce'). The White House will be responsible for convening the Taskforce. The latter will concentrate on the following 3 core issues:
The two departments in question will consider a number of different policy options in order to address these issues. It will also allow relevant stakeholders to give their input.
The Taskforce's work will build on the existing efforts by both DHS and DOL to implement much-needed reforms to the H-2B temporary work visa programs. During the next few months, DHS also intends to release a notice of rules related to the program it intends to draw up. Among others, these will include policies that beef up the protections that are available to H-2 workers.
More details about the safeguards of the H-2B program, and also filing and eligibility requirements, will become available when the temporary final rule is announced as well as on the Cap Count for H-2B Non-immigrants web page.
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