What happened to the H-2B program in 2018: Landscapes 2018

The rush for guest worker visas highlights the labor shortage in no uncertain terms
The race is on for companies that need to hire foreign guest workers to meet labor needs. (Photo: Kostyantin Pankin, Dreamstime)

Those visas are issued in two groups: 33,000 in the first part of a fiscal year, between Oct. 1 and March 31, and 33,000 in the second part of a fiscal year, between April 1 and Sept. 30. For fiscal year 2018, the cap for the first round of visas was met as of Dec. 15, 2017. The cap for the second round was met on Feb. 27 following a lottery.

[Related: Struggle continues for H-2B temporary worker relief]

In 2017, Congress issued an additional 15,000 H-2B visas, but Hinojosa said they weren’t fully utilized. Some companies may have decided it wasn’t worth applying because, as Hinojosa noted, “It took the Department of Homeland Security until July 19 to issue” the additional visas. Consequently, when additional visas were needed in 2018, only 15,000 were made available again.

For fiscal year 2019, almost 20,000 of the 33,000 visas available in the first round had been issued as of Oct. 22. The visa caps were met a month earlier in 2018 than they were in 2017, Hinojosa said, and are on track to do the same thing in 2019. “That’s projected to be met by mid-November. That just means there’s going to be more pressure on April 1 because if you don’t make the first half of the cap, you withdraw that application. You do have to start over, but you can apply for the second half.”

An exemption for returning workers is in the language of the appropriations bill and will be up for discussion when Congress returns following the election in November, Hinojosa said.

H-2B compliance requirements

  • Companies can only apply 90 days prior to the date their labor needs will start, and may only submit one application per cap period.
  • Companies may not have laid off any U.S. workers within 120 days prior to applying for H-2B visas; if they have, they must give laid-off U.S. workers a chance to return. If companies have layoffs after acquiring visas, like for a shortened season, they must lay off the H-2B workers’ first.
  • Jobs covered by the H-2B program must be for at least 35 hours per week.
  • Employers must provide required job-related equipment like uniforms or PPE.
  • Employers also must pay for H-2B workers’ reasonable travel expenses to and from the U.S. Hinojosa recommended reimbursing workers for 100% of their travel expenses even though “technically you could only reimburse them what’s not going to take them below federal minimum wage.” Employers only have to reimburse workers for “reasonable” travel expenses, so if a worker wants to pay more to fly instead of take a bus, they employer only has to reimburse the worker for the bus ticket.
  • Employers are required to pay any visa-related expenses.
  • Employers can’t pass on any fees to workers.
  • Worker’s rights posters in English and Spanish have to be posted prominently.
  • When employers apply for visas, they have to specify which counties guest workers will be working in. If any work is done in a county that wasn’t specified on the application, the company could be in violation.
  • Employers have two days to notify Department of Homeland Security and DOL if there’s an early separation. Employers won’t be responsible for transportation costs if a visa beneficiary abandons the position or is fired for cause.

Penalties for violating these program requirements can be up to $10,000 per violation, Hinojosa said.

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