Balancing the Scales: Examining the Pros and Cons of the H-2B Visa Program

Posted on Apr 28, 2023 by Chris Prescott

The H-2B visa program is a temporary work visa program that allows U.S. employers to hire foreign workers to fill non-agricultural jobs on a seasonal, peak-load, intermittent or one time basis. This program is designed to help businesses meet their labor needs when there are not enough U.S. workers available to fill these jobs.

The H-2B program has been the subject of much debate and controversy in recent years, with advocates arguing that it is a vital tool for U.S. businesses, while critics argue that it takes jobs away from U.S. workers and exploits foreign workers. In this article, we will explore the pros and cons of the H-2B visa program.

Pros:

  • Fills Labor Shortages: The H-2B visa program helps U.S. businesses fill labor shortages when there are not enough U.S. workers available to fill these jobs. This is particularly important for seasonal industries such as landscaping, hospitality, and seafood processing.
  • Boosts the Economy: The H-2B visa program contributes to the U.S. economy by creating jobs and generating revenue for businesses.
  • Protects U.S. Workers: The H-2B visa program requires U.S. employers to certify that they have tried to recruit U.S. workers before hiring foreign workers. This helps protect U.S. workers from being displaced by foreign workers.
  • Provides Opportunity for Foreign Workers: The H-2B visa program provides an opportunity for foreign workers to work legally in the U.S. and earn higher wages than they would in their home countries.

Cons:

  • Exploitation of Foreign Workers: Critics argue that the H-2B visa program is often exploited by U.S. employers who take advantage of foreign workers by paying low wages and providing poor working conditions.
  • Takes Jobs Away from U.S. Workers: Critics also argue that the H-2B visa program takes jobs away from U.S. workers who are willing to work these jobs but are not given the opportunity.
  • Short-Term Solution: The H-2B visa program is a short-term solution to labor shortages and does not provide a long-term solution to the underlying issues of labor supply and demand.

Process

The process for obtaining an H-2B visa involves several steps, including obtaining a temporary labor certification from the U.S. Department of Labor, filing a petition with U.S. Citizenship and Immigration Services (USCIS), and attending a visa interview at a U.S. embassy or consulate abroad. Here is a more detailed explanation of each step:

Step 1: Obtain a Temporary Labor Certification

The first step in the H-2B process is for the U.S. employer to obtain a temporary labor certification from the U.S. Department of Labor (DOL). The employer must demonstrate that there are not enough U.S. workers who are able, willing, and qualified to perform the job and that hiring foreign workers will not adversely affect the wages and working conditions of similarly employed U.S. workers. The DOL will review the employer’s application and, if approved, issue a temporary labor certification.  It should be noted that to obtain a temporary labor certification an Employer also needs to obtain a prevailing wage determination.

Step 2: File a Petition with USCIS

Once the employer has obtained a temporary labor certification, they can file a petition with USCIS to sponsor the foreign worker for an H-2B visa. The employer must provide evidence that they have obtained a temporary labor certification, that the job offer is temporary, and that the foreign worker has the necessary qualifications and experience to perform the job. The petition must also include a copy of the temporary labor certification.  There are numerical limitations on the number of H-2Bs available each fiscal year.  H-2Bs are issued on a first come first served basis.

Step 3: Attend a Visa Interview

If the petition is approved by USCIS, the foreign worker must attend a visa interview at a U.S. embassy or consulate abroad. The foreign worker must provide evidence that they have a job offer in the U.S., that they have ties to their home country that will compel them to return after their temporary stay in the U.S., and that they have the necessary qualifications and experience to perform the job. The consular officer will review the foreign worker’s application and, if approved, issue an H-2B visa.

Step 4: Enter the U.S. and Begin Work

Once the foreign worker has obtained an H-2B visa, they can enter the U.S. and begin work for the U.S. employer. The foreign worker must abide by the terms of their visa, which generally allows them to work for the U.S. employer for a specific period of time, typically no more than 10 months. The employer must also abide by the terms of the temporary labor certification, which requires them to pay the foreign worker the prevailing wage for the job and to provide working conditions that are no less favorable than those provided to similarly employed U.S. workers.

Conclusion:

The H-2B visa program is a controversial program that has both pros and cons. While it provides a necessary tool for U.S. businesses to meet their labor needs, it also has the potential to exploit foreign workers and take jobs away from U.S. workers. Ultimately, the H-2B visa program needs to strike a balance between meeting the needs of U.S. businesses and protecting the rights of U.S. and foreign workers.

If you are considering submitting an H-2B application or seeking further details, kindly reach out to PLG Partner Chris Prescott via email at cprescott@patellegal.com.  Please note that the next filing window is July 1-3, 2023, and that in order to file during this window an employer needs to be in receipt of a prevailing wage determination, that typically takes 4-5 weeks.

For more information about the H-2B program check out our Youtube video: