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U.S. Exceeds Temporary Worker Visa Cap

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U.S. Citizenship and Immigration Services office | Image by Shutterstock

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The United States Citizenship and Immigration Services (USCIS) is telling employers it will reject most requests made after September 12 for H-2B visas, the government program which grants foreign nationals temporary visas to fill nonagricultural jobs.

The reason for the rejections is that a cap of 66,000 established by Congress in 1990 for H-2B visas has been exceeded this fiscal year for foreign workers looking to start seasonal work before April 2023.

An additional 55,000 visas created for this fiscal year have also already been issued.

While H-2B visas technically operate on a random lottery system, the drawing closes when the cap is reached. The cap on the work permits is divided into two equal batches for the first half of the fiscal year and the second half.

If there were to be any leftover visas from the first half of the fiscal year, they could roll over to the second half, but leftover visas do not roll over from one fiscal year to another.

The H-2B visa program allows employers to temporarily hire migrant workers if they prove they cannot find U.S. workers to do the job. Landscaping, construction, and amusement parks are some of the largest sectors using these work permits, alongside janitorial services, hospitality, and forestry.

Texas employers have requested and received more H-2B visas than any other state in the U.S. in the last fiscal year.

From October 1, 2020, through September 30, 2021, companies in Texas asked for 22,857 temporary work visas, and 18,936 were certified. From October 1, 2021, through June 30, 2022, more than 1,000 Texas companies requested nearly 4,200 more visas than were approved, according to data from the U.S. Department of Labor (DOL).

The visas are intended only to offer a temporary cushion for employers with growing labor demands. However, businesses have become increasingly reliant on temporary workers in recent years, with the Department of Homeland Security (DHS) and the DOL creating an additional 55,000 slots for H-2B workers this year.

On May 18, the DHS and DOL announced the creation of an additional 35,000 H-2B visas for the second half of the fiscal year. The extra batch was created for businesses that would suffer “irreparable harm” without the ability to hire additional non-citizen workers.

Of the 35,000 new visas, 23,500 were reserved for returning H-2B workers, and the remaining 11,500 was set aside for people from El Salvador, Guatemala, Honduras, and Haiti.

The additional H-2B visas were necessitated by an unprecedented labor shortage in the workforce, with the Bureau of Labor Statistics reporting 11.4 million job openings in April.

“These additional H-2B visas will help employers meet the demand for seasonal workers at this most critical time when there is a serious labor shortage,” said DHS Secretary Alejandro N. Mayorkas in a May statement.

On May 25, just one week later, USCIS announced its cap of 23,500 additional visas designated for returning H-2B workers had already been reached. However, it is still accepting temporary worker visas for citizens of Honduras, Guatemala, El Salvador, and Haiti.

The additional supplement of visas in May came after a similar effort in January when the DHS and DOL made 20,000 H-2B visas available for a similar group of workers.

The U.S. Chamber of Commerce’s Vice President of Immigration Policy Jon Baselice praised DHS for the initial January offering, saying the additional visas would be welcomed by “seasonal businesses across the country.”

“It is vital that DHS make these visas available as soon as possible, as these workers are urgently needed to fill critical workforce shortages across a host of industries,” he told reporters on March 31.

While additional H-2B visas make a difference for businesses struggling to find workers, the U.S. Chamber of Commerce has argued more needs to be done. Over the last year, the national chamber has pushed Congress to double the cap on H-2B visas.

“We hear from businesses every day that the worker shortage is their top challenge, and it’s impacting the country’s ability to ease supply chain disruptions, get inflation under control and continue our economic recovery,” U.S. Chamber of Commerce Executive Vice President and Chief Policy Officer Neil Bradley said on May 16.

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