Thanks to the massive Omnibus spending bill signed by Obama on 18 December 2015 to avoid a possible "Government Shutdown" there is in effect an increase in the 66,000 H-2B visas available for fiscal year 2016. The H-2B non-agricultural non-immigrant visa program allows foreign nationals to enter the US to take up temporary non-agricultural jobs offered by employers where there is a proven shortage. From 18 January 2016 nationals of the following 16 Countries will be added to the program:
- San Marino;
More H-2B Visas due to Omnibus Spending Bill
The DHS said: "The total number of foreign nationals who may be issued an H-2B visa or otherwise granted H-2B status during a fiscal year has a statutory numerical limit, or 'cap'."
US Congress has set the current H-2B cap at 66,000 per fiscal year, divided into 33,000 for foreign workers who commence employment in the first half of the fiscal year, which runs from October 1 to March 31, and a further 33,000 who start employment in the second half of the fiscal year running from April 1 to September 30.
From the first half of the fiscal year, should any H-2B visas go unused, they will be made available to employers looking to recruit foreign workers during the second part of the fiscal year. Under the Omnibus spending bill returning H-2B visa workers are exempt from the H-2B visa cap.
H-2B Visa Process Difficult
The DHS revealed that 14,235 foreign workers had benefitted from the H-2B visa, whether approved or awaiting a decision from them, as of December 14, 2015. However, US employers have concerns about the H-2B visa process.
Qualifying for an H-2B visa places the responsibility on employers lodging an application to prove that there are no US workers who are able, willing and possess the necessary qualifications to carry out the temporary work.
The employer must also prove that hiring a temporary foreign worker will not have an adverse impact on wages and working conditions of US workers employed in a similar capacity. Furthermore, there's a requirement for the employer to show that the need for foreign labor is temporary.
H-2B Temporary Labor Certification required to show shortage
An owner of a home care staffing agency, who wanted to remain anonymous, said: "It's not cheap to hire foreign workers for temporary or contract work. The scale of processing the H-2B petition alone, and filing for the needed documentation for immigration and labor is an arduous process."
The unnamed agency owner further complained of a labor shortage and an acute lack of 'quality care-givers,' saying "I was considering hiring more people from the Philippines, but I am having second thoughts due to the long process."
For many employers, filing the required documents for the non-immigrant visa petition and temporary labor certification is just one of the expenses that they have to deal with. They may also need to offer board and lodgings to temporary workers they hire. Many employers are having to carefully consider whether it is worth the time and effort to employ an H-2B visa worker in the first place.
H-2B visa expansion
There have been some hysterical attacks by some in the media about expansion of the H-2B visa scheme. Changes in the law due to some visas issued in the past not being counted towards the cap mean more visas being available. It is not certain how many more visas will actually be issued due to the changes. As it is difficult obtaining an H-2B visa in the first place it may very well turn out to be the case that the increase in visas will not be that significant. The H-2B visa for skilled or unskilled workers has never been anything like as popular as the H-1B visa for graduate level specialty workers.
Critics of the recently expanded H-2B visa program, approved in December 2015 by Congress as part of a huge spending bill, say that foreign workers will be exploited, take jobs from US workers and make wages static, according to USA Today – a popular US newspaper. Many will say that this is unlikely. There are more restrictions on employing a workers on an H-2B visa than employing an American citizen or permanent resident.
USA Today quoted the executive director of the Center for Immigration Studies, Mark Krikorian, who said: "What business owners are trying to get here is captive workers –people who are desperate and won't complain no matter how they are treated…they're importing a servile class…there's no excuse for this." Mr Krikorian it should be noted has links with the extreme right and has made a number of statements in the past that are not actually true.
Businesses support increase in H-2B Visas
The H-2B Workforce Coalition - an alliance of more than 40 industry groups that lobbied for temporary non-farm workers to be issued with H-2B visas – refutes Kerkorian's assessment of US business motives, stating that the program does not allow employers to exploit foreign labor.
The seasonal worker provision has the backing of a group of industry sectors that includes beach resorts, construction companies, hotels, restaurants, seafood processors and ski resorts.
Advocates of reforms to the H-2B visa program say that it will help US companies to recruit enough workers to carry out jobs that are vital to businesses for meeting consumer demand during peak seasons.