Employers offer opportunities for temporary or seasonal work in the United States and its territories all year long, all around the globe — from Alaska to Guam. When you are looking for a way to supplement your labor workforce, the U.S. guest worker program is a way to keep your business running smoothly and remain competitive in your industry in spite a shortage of U.S. workers while also providing foreign workers an opportunity to earn a living that, in many cases, will far exceed what they may be able to earn at home.
If you are considering bringing workers to the U.S. under the H-2B visa worker program, you will need a basic understanding of this complicated process, including the lottery system that was created in 2019.
What is the H-2B visa program, and who qualifies?
Nonagricultural guest workers who want to work in the U.S. performing temporary or seasonal work must be approved for a visa under the H-2B visa program for certain kinds of jobs. According to the U.S. Department of Labor (DOL), to petition for H-2B workers, the jobs you offer must fit one of the following.
- An intermittent need. This means the employer has an occasional or short-term job need not currently filled by available U.S. workers.
- A one-time occurrence. This means the employer has not employed workers to perform this job in the past and will not in the future, or that the job itself is permanent but a short-term event has caused a need to fill the job with a temporary worker.
- Seasonal. Labor is traditionally tied to a season by an event or pattern and is recurring in nature. This means the job itself or the need for additional workers is recurring but temporary. For example, snow removal or holiday lighting.
- Peakload. Employers must prove that: (1) it regularly employs permanent workers doing the same kind of work at the jobsite; (2) but due to a seasonal or short-term demand it must temporarily supplement those permanent workers; and (3) temporary workers will not become part of the employer’s regular operations.
Qualifying as an employer for the H-2B visa program means that you first must have your labor certification approved under the H-2B visa program. In order to receive a labor certification from the DOL, you must:
- File a prevailing wage determination: This allows the DOL to review the job duties and location of the work in order to determine that you are offering a reasonable wage for similar work being performed in the same location.
- Submit application and the job order request form: This allowed the Chicago National Processing Center to determine the job you are offering meets all the necessary requirements, including, for example, housing accommodations for workers.
- Recruit American workers: Before you can receive your labor certification to bring in H-2B workers, you must demonstrate that you are actively trying to fill the jobs with American workers and submit a recruitment report.
Once you receive an approval from the U.S.C.I.S., you are able to begin processing foreign workers, who must be able to demonstrate that they:
- Come from a country approved to participate in the H-2B visa program, or show that, even though your home country is not on the list, your work will be a benefit to the U.S.
- Prove that you do not intend to immigrate to the U.S. by demonstrating close ties to your home country; and
- Pass a U.S. consular or embassy interview and nonimmigrant visa application review
However, during this entire process, which begins about five months before the start of work, there are two lottery processes you as the employer must go through in order to enable you to hire other workers.
Why is there an H-2B visa program lottery system?
Like other visa programs, U.S. guest worker programs have limits on the number of people allowed to receive the visas. The H-2B category has a cap of 66,000 workers, divided up equally in each half of the fiscal year. This means that
- Up to 33,000 visas are available to workers who begin employment between October 1 to March 31.
- Another 33,000 are available to workers whose employment begins between April 1 to September 30.
So why the lotteries, if the approved visas are spread out over the year? Even with the division of the 66,000 visas across two halves of the year, there is a bigger need for workers than there are visas available, and there are more applicants than there are jobs available.
The DOL wanted to encourage employers to petition as early as possible, and so the system initially placed applications for processing in the order they were received in the electronic filing system. However, on January 1, 2018, over 5,000 petitions were filed for a total of 96,400 workers — just for jobs starting on April 1st. This crashed the electronic filing system.
After that, the DOL decided to start using random selection, or a lottery system, to process applications from employers. The DOL accepts some applications for processing if they are received in the first three days of the filing period. United States Citizen and Immigration Services (USCIS) also decided to start using a lottery process to process applications from foreign workers.
In short, there are two lotteries:
- The DOL lottery, which accepts application from U.S. employers who want to hire workers from another country
- The USCIS lottery, which processes petitions after the DOL approves the labor certification
How are H-2B jobs and workers approved under the lottery systems?
The lottery system plays a role in whose application gets seen for processing first, not in who qualifies for the program. Petitioners who pay for premium processing don’t have a better chance of making it through the lottery, but they will move faster at the USCIS processing stage but only once they are selected during the lottery.
Based on the randomly generated processing order of the lottery system, the DOL selects the number of H-2B visa petitions that altogether have enough job openings to reach the 33,000 half-year cap. This continues through each processing cycle. If you look at the table of applications received, you will notice that the earlier in the year, the larger the number of petitions are received and approved.
USCIS operates similarly once it is their turn to process petitions. For example, on February 12, 2021, USCIS received more applications than there are available visas, when you total the number of jobs in each application. Five days later, on February 17, they used the lottery system to randomly select employer’s petitions for processing. After the lottery, they assigned receipt dates to all petitions and began premium processing services.
Is there any other way to work in the U.S. under the H-2B program?
H-2B workers cannot legally work in the U.S. without an approved job offer from an employer whose petition has been approved and passed through the lottery systems. In fact, the process for the worker is relatively easy once the employer makes it through all the steps leading up to your application to USCIS.
Many people, including the CATO institute, believe the U.S. needs to increase the number of available visas under the H-2B program. For several years now, including 2021, the U.S. has made special allowances for more workers than allowed under the cap of 66,000, such as the additional 22,000 worker visas that were made available in Summer 2021. These supplemental H-2B visas were quickly exhausted by H-2B employer applicants. .
The new H-2B lotteries are complex, and they can be confusing to even experienced H-2B employers. If you have questions about H-2B visas, the experienced employment immigration lawyers at Farmer Law are here to help. Schedule a consultation with our attorneys today.