As it wrapped up its current session, Congress had a prime opportunity to provide employers with needed access to trusted H-2B seasonal workers, instead, it failed to get the job done. While Representative Jared Polis (D-C.O.) joined the effort by Representative Andy Harris (R-M.D.) to get relief for businesses, their proposal was not included in the funding bill that was ultimately passed.
The H-2B program is essential to employers who cannot find local workers to fill temporary jobs in many industries.
As the economy has started to improve, employers have seen increased demand for these visas which are capped by law at 66,000 per year. This 66,000 cap is divided equally between the first half of the fiscal year (October 1st through March 30th) and the second half of the fiscal year (April 1st through September 30th).
Once the 33,000 cap is reached for that half of the year, many employers are not able to get the H-2B workers they need to keep their businesses operating at full capacity — or, worse, they may have to shut down parts of their operation.
Employers who use the H-2B program are required to advertise the jobs to U.S. workers and hire those who meet the skill set.
Several major federal government departments are involved, including the Department of Labor, for the protection of American workers, Department of Homeland Security, to ensure visa program criteria are met, and the Department of State, which is another check on ensuring program requirements are met and that the worker meets all other requirements.
H-2B workers complement the U.S. workforce and help to grow the economy, in turn creating more jobs. One report estimates that for every 100 H-2B workers hired, an additional 464 jobs for U.S. workers are created.
But the 66,000 cap is arbitrary and not responsive to the actual economic needs of employers who are reliant on temporary workers to fill seasonal, peak load, intermittent or one-time occurrence jobs.
Congress has been able to address this situation in the past by creating a provision called the H-2B Returning Worker Exemption.
This provision provides important relief from the annual cap on H-2B visas by exempting an H-2B worker from the current fiscal year’s cap if they have worked for the petitioning employer during the previous three years, allowing employers to rely on workers who have previously utilized the H-2B program.
This cuts down on training time and reduces visa fraud by encouraging employers and employees to comply with the program so that they can utilize it the following year.
The provision provides the breathing room needed during good economic times when the annually allotted visas are not sufficient to meet the demand for these workers.
The Returning Worker Exemption is critical for industries like seasonal resorts, commercial fishing, logging, landscaping, construction and others. Businesses must compete with each other for the limited number of visas available and are left without the workforce they need when the caps are hit. This makes it extremely difficult for employers to develop their business plans and make critical strategic and financial decisions about their company’s future.
Returning workers are the ones that employers know and trust, and clearly the workers are interested in coming back.
The less uncertainty a business faces, the better it can succeed in the present and plan for the future.
More members of Congress need to join with Reps. Polis and Harris in their efforts to renew the H-2B Returning Worker Exemption.
It is smart, efficient, effective policy that benefits American workers by helping businesses grow, thereby creating more jobs around the country. That’s exactly the type of thing Congress should get behind.
Jeff Joseph, Esq., is a senior partner and director of Corporate Immigration & Employer Compliance, Joseph Law Firm, P.C.
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