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The number of migrants seeking to enter the U.S. at the Mexico border reached historic levels in 2023, with a record 2.5 million land border encounters with individuals lacking proper authorization to enter the U.S.
In addition, a less publicized situation occurring within our borders is a shortage of workers to fill jobs not otherwise being filled by the documented labor force. According to the Bureau of Labor Statistics, as of May 30, there were 8.1 million job openings in the U.S., and, as of Jan. 1, only 6.1 million available workers to fill those jobs.
The Society for Human Resource Management highlights that 46% of U.S. organizations are experiencing workforce disruptions because of a shortage of available workers and 57% of organizations report that they would benefit from an increase in legally authorized workers on visas.
At the intersection of these two issues is a compassionate and nonpolitical solution to a highly divisive humanitarian issue: matching qualified migrants with employers facing shortages of workers by leveraging the existing H-2A and H-2B legal frameworks.
Further, with proposed H-2A fee legislation being circulated through several House committees by Rep. Delia Ramirez, D-Ill., now may be the time to revisit and invest in these programs.
This visa solution could boost the productivity of American businesses and improve the overall economy, while offering fair wages, housing and other benefits to the many migrants who come to the U.S. in search of a better life than the one they left behind.
The H-2A and H-2B programs provide short-term visa status for workers in the agriculture industry, as well as in nonagricultural jobs that are temporary in nature.
Under these frameworks, the U.S. Department of Labor would assess the labor market, U.S. Citizenship and Immigration Services would vet employers, and U.S. Customs and Border Protection and the U.S. Department of State would assess migrants’ skills, conduct background checks and provide legitimate work authorization.
The short-term nature of the H-2A and H-2B visas is appealing because applicants are required to undergo a biometric and security screening each time they renew their status.
The H-2A visa is reserved for jobs that are, by definition, agricultural in nature. There is no numerical limitation on the H-2A visa, and before recruiting or transporting H-2A workers, employers must prove that there is a demonstrated shortage of U.S. workers.
This visa also provides protections for both U.S. and foreign workers. For example, employers must pay workers the higher of the adverse-effect wage rates, the DOL prevailing wage, or the federal or state minimum wage.
Employers must pay a worker’s inbound and outbound transportation costs, and provide a per diem for each day of travel.
And, most significantly, employers must provide housing that meets all applicable safety standards, which addresses the problems that many major metropolitan areas are experiencing with new immigrants becoming homeless or occupying shelters.
The H-2A visa program would provide migrants with work authorization, fair wages and family benefits, without a numerical limit on registrations.
The H-2B visa is for jobs that are temporary in nature, such as seasonal, peak-load, one- time occurrence or intermittent jobs. Landscaping and seasonal resorts are two examples of industries that utilize the H-2B visa.
Like the H-2A visa, the H-2B visa process involves a test of the labor market to prove that there is a shortage of U.S. workers. It also requires fair wage protections and family benefits. Unlike the H-2A visa, however, there is no requirement to provide housing and a statutory limitation of 66,000 visas available each year applies.
Many of our clients have used the H-2B program to hire foreign national workers with varying results. Some have found it to be a reliable source for seasonal talent, while others have said it has become unreliable.
By increasing utilization of the H-2A and H-2B programs for new immigrants who arrive at the U.S. borders with the skills and willingness to do jobs for which employers have a demonstrated need, Congress could put a big dent in the border issue while also helping such companies grow and thrive.
But this solution does not come without barriers.
First, Congress would need to statutorily authorize an increase in the H-2B statutory annual cap. The demand for H-2B visas far surpasses their availability each year. Last year during this filing period, the DOL received 8,693 applications, requesting 142,000 positions. This year, the DOL received 8,817 applications, requesting 138,000 positions.
Congress, in recognition of the historical and current demand has, for the last several fiscal years, authorized supplemental caps, and often does so through appropriations and omnibus legislation. Additional countries, such as Venezuela and Cuba, should be considered in the expansion of this cap program as well as an increase in the general visa numbers that include Mexico.
Countries that have high levels of arrivals at the southern border would need to be designated by the U.S. Department of Homeland Security for purposes of H-2A and H-2B visas.
Currently, countries receiving additional supplemental visa numbers under the H-2B visa program include El Salvador, Honduras, Guatemala, Haiti, Costa Rica, Colombia and Ecuador. The U.S. Agency for International Development is presently working with those foreign ministries to train U.S. consular officials on the H-2 visa programs.
The foreign ministries in these countries are also tasked with vetting applicants in conjunction with helping to grow the awareness of the program in these countries.
Critics may draw comparisons to the controversial Bracero program, a government-sponsored program that brought millions of Mexican farm and railroad workers to the U.S. for seasonal jobs between 1942 and 1964. Harsh conditions and low pay eventually led to its end.
However, the current H-2A and H-2B framework offers better protections for migrant workers’ well-being and better pay —protections that did not exist during the Bracero program.
The comprehensive approach of utilizing visa categories that are already within our immigration toolbox offers a humane and economic solution that addresses the situation at the border, which has left many migrants and local communities without viable programs or opportunities, and helps companies overcome worker shortages.
To make these changes will take political willpower, but at the collision of two separate crises lies possibility and progress.
Ashley Foret Dees and Jeff Joseph are BAL Partners (based in Houston and Denver, respectively) who oversee the firm’s H-2A agricultural and H-2B temporary visa programs.
This article originally appeared on Law360.
In this week’s episode, we examine a recent H-2A report, discuss the new Farmworker’s Protection Rule and outline the Biden administration’s Spring regulatory agenda updates. We also kick off our Olympics-focused series with a look at what it takes from an immigration perspective to get Team USA to the games. Explore more episodes of BAL’s podcast, the BAL Immigration Report, available on Apple, Spotify and the BAL news site.
This podcast has been provided by the BAL U.S. Practice Group.
Copyright © 2024 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries, please contact copyright@bal.com.
H-1B registration has closed and petition filing begins next week.
The government opens an H-2B cap for returning workers.
And a look at how employers have been preparing for major USCIS filing fee increases.
Get this news and more in the new episode of BAL’s podcast, the BAL Immigration Report, available on Apple, Spotify and Google Podcasts or on the BAL news site.
This alert has been provided by the BAL U.S. Practice Group.
Copyright © 2024 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries please contact copyright@bal.com.
The business community shows support for Dreamers. The Biden administration announces additional H-2B visas. And more on the role immigration could play in the development of AI in the United States.
Copyright © 2023 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries, please contact copyright@bal.com.
H-2 visas enable U.S. businesses to hire foreign nationals for temporary or seasonal employment. Learn more about the different H-2 visa types and how BAL legal experts deliver a proven approach to support temporary staffing opportunities.
The H-2A visa program allows a U.S. employer or agent to bring foreign nationals to the United States for temporary or seasonal agricultural jobs. The foreign national must have a standing offer of employment to qualify for an H-2A visa, and their prospective employer must meet certain regulatory requirements. If all legal requirements are met, the employer may petition the U.S. government to initiate the H-2Aprocess for the foreign national worker.
To qualify for H-2A nonimmigrant classification, an employer must: • Offer a job that is temporary or seasonal in nature. • Show that there are not enough U.S. workers able, willing, qualified, or available to do the temporary work. • Demonstrate that employing the H-2A worker will not negatively impact the wages and working conditions of similarly-employed U.S. workers. • Prove that the visa holder intends to return to their home country after the visa expiration date. • Submit a valid temporary labor certification from the U.S. Department of Labor.
A worker with an H-2A visa may be granted a stay for up to the period of time authorized on the temporary labor certification submitted by their employer to the U.S. government. H-2A classification stays may be extended in increments of up to 1 year. The maximum period an H-2A classification stay permission is 3 years.
Whenever possible, BAL helps keep families together by assisting employees’ spouses and minor children to qualify for H-4 visas. Additionally, qualifying spouses and dependents of an H-2A worker may be allowed to enter the United States during the duration of their spouse’s H-2A visa, and the worker is given the unrestricted permission to travel into and outside of the U.S. during their visa period as well. Family members of H-2A workers are ineligible for employment in the U.S. under this program but may be able to personally qualify for a work visa.
H-2A visa holders are entitled to protection under U.S. wage and labor laws, workers’ compensation benefits, transportation, and certain housing and education benefits for themselves and their family. Wages for H-2B workers must be the highest of the adverse effect wage rate (AEWR), the applicable prevailing wage, the agreed-upon collective bargaining rate, or the Federal or State statutory minimum wage. H-2A employers are required to guarantee a minimum number of work hours to H-2A workers and offer employment for at least three-fourths of the total workdays in the contract period. Workers have the right to report any violations without fear of retaliation and be represented by an attorney in matters related to their employment. Terms and conditions of employment must be provided in a written contract by the employer in a language the worker understands.
H-2A classifications may be extended in increments of up to 1 year each. The maximum extension permitted under the H-2A program is 3 years. With certain exceptions, after 3 years an H-2A worker must leave the U.S. for 3 consecutive months before seeking readmission.
Learn more about how BAL’s temporary workforce immigration experts can help your business.
An H-2B nonimmigrant visa allows a U.S. employer or U.S. agent to bring foreign nationals to the U.S. for temporary, non-agricultural jobs.
Many employers, such as seafood processors and the forestry industry, use the H-2B visa program to retain temporary, seasonal foreign national workers.
To qualify for H-2B nonimmigrant visa classification, an employer must: • Show that there are not enough U.S. workers able, willing, qualified, or available to do the temporary, non-agricultural work. • Demonstrate that employing the H-2B worker will not negatively impact the wages and working conditions of similarly-employed U.S. workers. • Show that the need for labor is temporary in duration. Work placement and temporary agencies are not eligible for the H-2B visa program. • Submit a valid temporary labor certification from the U.S. Department of Labor.
In order to demonstrate an H-2B program temporary need for labor, an employer must show that the labor is: • A one-time occurrence: An employment situation that is usually permanent has created the need for a temporary worker, the employer has not employed workers for the services or labor in the past, and the employer will not need to hire workers to perform the services or labor in the future. • Seasonal: The employer’s need for services or labor is tied to a season of the year by an event or pattern, and is of a recurring nature. • Peak load: The employer routinely employs permanent workers to perform the services or labor, needs to supplement its permanent staff due to a seasonal or short-term demand, and the temporary staff additions will not become part of the employer’s regular operation. • Intermittent: The employer has not hired permanent or full-time workers to perform the services or labor, and occasionally or intermittently needs workers for short periods.
The H-2B visa is a nonimmigrant visa that does not directly lead to a green card, but H-2B visa holders can apply for an adjustment of status through employment-based preference categories. The steps for employers when sponsoring a foreign worker for permanent residence generally include filing a prevailing wage determination with the U.S. Department of Labor, submitting an application for permanent labor certification (PERM), filing a Form I-140 with U.S. Citizenship and Immigration Services. BAL is available to help companies navigate the green card process for H-2 and other eligible workers.
If your business is facing seasonal or other short-term staffing needs, or economic uncertainty is impacting your permanent hiring decisions, H-2 visas for temporary workers may be the answer.
The need for labor is considered to be temporary if it is:
There are two H-2 visa options to consider based on your industry.
H-2A visas are appropriate for any agriculture-related industry requiring temporary or seasonal help and allow workers to remain in the U.S. for one year, but employers can request extensions annually for up to three years. At the end of three years, the worker must leave the U.S. before seeking readmission. There are no government caps on the number of H-2A visas allowed each year.
H-2B visas are used for many industries and allow workers to remain in the U.S. for up to three years, and, like the H-2A visa, the worker must leave the U.S. before seeking readmission. Also, the government caps the number of H-2B visas allowed each year, and eligible workers are selected via a lottery.
Both types of H-2 visa holders are entitled to prevailing wages and standards of employment, worker’s compensation benefits, as well as certain housing and education benefits for them and their families. The spouse and children under 21 years of age of H-2 visa holders may seek admission on H-4 visas but are not eligible for employment.
To obtain either type of H-2 visa, an employer must show that:
Meeting these requirements is integrated into the application process for both types of H-2 visas.
The H-2A process should be started 60 to 75 calendar days before the job’s start date. The process involves these basic steps:
The H2-B process should be started at least 150 calendar days before the job’s start date. This visa type’s process includes all of the above but also requires employers to first obtain a prevailing wage determination from the DOL’s National Prevailing Wage Center (NPWC) before applying for temporary labor certification. The DOL determines the prevailing wage for the particular role and the employer must agree to pay at least that wage. Employers for H-2B workers must include the DOL’s prevailing wage determination in their application for temporary labor certification.
While we have simplified launching a temporary workers program, employers often face significant challenges, including:
BAL’s experienced immigration attorneys Ashley Foret Dees and Jeff Joseph can provide straightforward counsel on successfully navigating the H-2 visa processes. Get the temporary help your business needs on your terms, from assessing candidates to managing the documentation and responding to government agencies, ensuring compliance and reducing risk.
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The Justice Department questions states’ standing to challenge DACA. Proposed H-2 regulations are under White House review. And a new Form I-9 rule is in the works — but may not take effect in time for employers relying on COVID-related flexible measures.
This alert has been provided by the BAL U.S. Practice group.
Copyright ©2023 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries, please contact copyright@bal.com.
This alert has been provided by the BAL U.S. Practice Group.
BAL Partner Ashley Foret Dees is one of the nation’s preeminent experts on H-2 visas and the founder of the Louisiana State Bar Immigration Law Section. Since 2009, she has been a pivotal asset to corporate employers reliant upon temporary or seasonal workers to secure global talent and remain competitive. We recently sat down with Ashley for a conversation about trends in H-2 visa practice and her experiences as a woman in the profession.
What are your areas of practice?
My specialty is representing employers interested in securing the critical skills of global temporary or seasonal workers through the H-2 visa process. There are two types of H-2 visas: H-2A and H-2B. Both visas permit an eligible U.S. employer or agent to hire a temporary or seasonal worker who is a foreign national. An H-2A visa is used solely for the hiring of agricultural workers, and an H-2B permits the hire of nonagricultural workers.
I also represent clients in family immigration, including defense of removal, asylum cases and DACA.
What’s the difference in processing time between H-2A and H-2B visas in FY2023?
H-2A agricultural visas are much easier — you can turn around the entire filing in 60-75 days. Those are very fast because there’s no cap for H-2As.
H-2 B visas are so different, especially this year. We remind employers that nowadays they have to back up their program timeline if they want to apply for an H-2B. Prevailing Wage Determinations are now taking an extra 45 days, which is long. That backs up the timeline to April 15. So, when people call in July and say, “I’d like to talk about October H-2B visas,” it’s like, “Well, we can talk about next year’s October visas.”
What other hurdles are employers interested in H-2 visas encountering?
The majority of employers who utilize the H-2A and H-2B visa programs are small businesses trying to leverage themselves into a really complicated federal visa program. Most small business owners don’t have a grasp on what opportunities are available for employers and find the process intimidating.
What questions are H-2B employers asking about this year’s lottery?
Everyone also wants to know about strategy right now. They’re interested in moving start dates, trying to get a supplemental visa number from one of the special reserved countries, and what to do if they’ve got such a bad position in the lottery their staff won’t be able to arrive this year. I help employers strategize, predict and find solutions within the H-2 program.
Can employers with preexisting immigration programs leverage H-2 visas as a mobility strategy?
There are some entities, like hotels, that should consider H-2s and other visa programs in combination with their existing programs. Hotels could mix having a J-1 trainee program with an H-2 visa program, and then move some of those workers into PERM status. I think there are a lot of industries out there that have a peak need to supplement their staff.
What interested you in immigration law as a field of practice?
The Catholic Charities (CC) in my area of Louisiana ran a very large refugee resettlement program that needed an attorney who spoke Spanish. My introduction to immigration law was doing asylum work with CC, which continued after graduation. Since there were no other practitioners in my area of the state practicing immigration law, I hung a shingle of counsel to a firm in 2009 — and opened my own practice in 2013.
What attracted you to becoming a partner with BAL and relocating your entire team to the firm?
I run a global practice, and my client employers are all over the country. It was an opportunity I couldn’t pass up — to leverage BAL’s advanced technologies and resources and continue to expand my H-2 practice much faster than I could on my own.
BAL is award-winning when it comes to advancing the status of women attorneys in the profession. How important was that to you when you were considering joining BAL?
So important. I think BAL having such diverse partners, attorneys, staff — and particularly women — is awesome.
Most of my clients are men. The interaction with women partners and attorneys is so crucial to my growth, learning and understanding of balance in my own life. And I think women immigration attorneys — and women attorneys in general — are such a powerhouse.
Ashley Foret Dees is a partner with BAL and a leading national expert and strategist in the areas of H-2A and H-2B employment visas. She has over a decade of experience representing clients in agricultural, seafood, hospitality and other industries. Ashley is a regular speaker on H-2 visa topics at the American Immigration Lawyers Association (AILA) Annual Conference and AILA Mid-South Chapter, and previously served on the AILA National Pro Bono Committee. She is also a member and former H-2 Visa Chair of the AILA Department of Labor Liaison Committee. Ashley is fluent in Spanish and founded the Louisiana State Bar Immigration Law Section, which she chaired for several years.