Academic journal article Current Politics and Economics of the United States, Canada and Mexico

The H-2b Visa and the Statutory Cap: In Brief *

Academic journal article Current Politics and Economics of the United States, Canada and Mexico

The H-2b Visa and the Statutory Cap: In Brief *

Article excerpt


In February 2018, in the face of unprecedented employer demand for H2B workers, a lottery was held for the first time in the history of the H-2B visa program to determine which employer petitions for H-2B workers would be processed.1 A law subsequently enacted during the 115th Congress authorized the Department of Homeland Security (DHS) to make additional H-2B visas available for the remainder of FY2018 subject to certain conditions. Using that authority, DHS made up to 15,000 additional visas available. FY2018 is the third year in a row that the issuance of H-2B visas beyond the statutory cap has been allowed.

H-2B Nonagricultural Worker Visa

The Immigration and Nationality Act (INA) of 1952, as amended,2 enumerates categories of aliens,3 known as nonimmigrants, who are admitted to the United States for a temporary period of time and a specific purpose. Nonimmigrant visa categories are identified by letters and numbers, based on the sections of the INA that established them. Among the major nonimmigrant visa categories is the "H" category for temporary workers. Included in this category is the H-2B visa for temporary nonagricultural workers.4

The H-2B program allows for the temporary admission of foreign workers to the United States to perform nonagricultural labor or services of a temporary nature if unemployed U.S. workers are not available. H-2B workers perform a wide variety of jobs. Top H-2B occupations in recent years have included landscape laborer, groundskeeper, forest worker, amusement park worker, and housekeeper. By regulation, participation in the H-2B program is limited to designated countries.5

Bringing workers into the United States under the H-2B program is a multiagency process involving the U.S. Department of Labor (DOL), DHS, and the Department of State (DOS). The program itself is administered by DHS's U.S. Citizenship and Immigration Services (USCIS) and DOL's Employment and Training Administration (ETA). DOL's Wage and Hour Division (WHD) also has certain concurrent enforcement responsibilities. The H-2B program currently operates under regulations issued by DHS in 2008 on H-2B requirements, DHS and DOL jointly in 2015 on H-2B employment, and DHS and DOL jointly in 2015 on H-2B wages.6

For work to qualify as temporary under the H-2B visa, the employer's need for the duties to be performed by the worker must "end in the near, definable future" and must be a one-time occurrence, a seasonal need, a peak load need, or an intermittent need.7 The employer's need for workers generally must be for a period of one year or less, but in the case of a one-time occurrence, can be for up to three years.8

In order to bring H-2B workers into the United States, an employer must first receive labor certification from DOL. An interim final rule on H-2B employment that was issued jointly by DHS and DOL in April 2015 establishes a new registration requirement as a preliminary step in the labor certification process; once it is implemented, prospective H-2B employers would demonstrate their temporary need to DOL through this registration process before submitting a labor certification application. (As of the date of this chapter, however, DOL continues to make determinations about temporary need during the processing of labor certification applications.)9

At the same time that the employer submits the labor certification application to DOL, the employer must submit a job order to the state workforce agency (SWA) serving the area of intended employment. The job order is used to recruit U.S. workers. The employer also must conduct its own recruitment.

In order to grant labor certification to an employer, DOL must determine that (1) there are not sufficient U.S. workers who are qualified and available to perform the work, and (2) the employment of foreign workers will not adversely affect the wages and working conditions of U.S. workers who are similarly employed. …

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