American businesses have struggled for years to hire qualified workers for seasonal positions, a problem that has worsened as the economy rebounds from the pandemic amid a general labor shortage. The H2B visa program, which allows the hiring of qualified foreign workers for temporary, non-agricultural work, may be a solution to this problem. Using this visa program, employers may hire staff for work that is seasonal in nature or to meet a peak load or intermittent needs. The most common employment settings in which H2B visa holders are hired are landscaping and groundskeeping businesses; resorts and golf courses; construction businesses; restaurants, motels and hotels; and the seafood industry.

The hiring of H2B visa holders requires planning several months ahead, as there are a number of different steps and three different government agencies involved in the employer-initiated process. A Prevailing Wage Determination (PWD) must be obtained to demonstrate that the hiring of the H2B worker(s) will not adversely affect local wages. An application for a temporary labor certification must be submitted to the Department of Labor (DOL) to establish that there are not enough qualified American workers available to do the work. When these steps are completed the employer must submit a Petition for a Nonimmigrant Worker (Form I-129) to the United States Citizenship and Immigration Service (USCIS). After the Petition is approved, the prospective H2B worker applies for an H2B visa at a U.S. Consulate abroad. Once the application is approved the U.S. Consulate, the visa holder may work in the U.S. for up to nine months, and the visa can be renewed twice for a maximum of three years, after which the visa holder must leave the U.S. for at least three months before applying again. The H2B visa is a non-immigrant visa, meaning that it is valid for a specified period of time and does not by itself lead to lawful permanent resident (i.e., green card) status. However, it may be possible for an H2B visa holder to apply for permanent resident status through an offer of employment (for different, permanent work) or through a family relationship, depending on the circumstances.  

The advantages of H2B hiring have become more recognized as employers have encountered difficulties hiring seasonal workers from the local labor pool. In fact, the demand for H2B positions has been increasing rapidly recently, with the result that the statutory “cap” (annual maximum number of visas granted), which is set at 66,000 per year, was increased through the agency’s discretionary authority by the addition of 20,000 visas in January of this year and again recently (on March 31, 2022) by another 35, 000 visas. 

This increase in available H2B visas is welcome news to employers who need to hire temporary workers. Given the challenges of the labor market, companies are finding that H2B hiring can be used to strategically grow and sustain their seasonal businesses.  The program can be an excellent solution since many companies find that H2B workers often stand out for their hard work and loyalty, with many returning to their employer year after year. The H2B program is relatively small, representing a small fraction of all U.S. workers, but for those industries that need to hire seasonal workers the program can be a lifeline, allowing businesses to stay open and serve the public during their busiest time.
For all of the benefits of the H2B program for businesses that need to hire seasonally, the reality is that the process of getting qualified workers to the U.S. through this program is quite complicated, with strict timelines that govern the various bureaucratic procedures needed. It is essential that an immigration law firm with H2B experience manage the process to make sure that all legal requirements are established and all deadlines are met. If your company is interested in learning more about how the H2B program might address your seasonal hiring needs, please feel free to contact the attorneys at Solow, Hartnett & Galvan for a legal consultation.