The H-2B Temporary Need Paradox
The H-2B visa program was once relatively obscure, overshadowed by the larger H-2A agricultural program and generating less political and media attention than the controversial H-1B program. But since the lowest ebb of the Great Recession, the H-2B program has come roaring back to prominence, with more businesses than ever before clamoring for their slice of the pie.
For the 2024 Spring visa “lottery,” the U.S. Department of Labor (DOL) received almost 9,000 applications representing some 138,000+ job positions – more than twice the annual statutory cap. And that’s only for the Spring – it does not consider the tens of thousands of H-2B workers sought for pre-April 1st start dates.
H-2B visa demand is not surprising, but there are certainly many surprises when you take a closer look at DOL’s disclosure data. The program was once the near-exclusive domain of traditionally seasonal industries – landscaping, hospitality, seafood processing, and the like. But as the U.S. labor market tightens, and Gen Z increasingly enters the workforce, there has been a discernible increase in non-traditional program usage. A few highlights:
You get the point: gone are the days when H-2B was limited to just Landscape Laborers and Housekeepers at ski resorts.
But with this new industry diversity comes added scrutiny by DOL on program eligibility. While it has always been the case that employers bear the burden of establishing a temporary need for workers (and demonstrating that the number of H-2B workers requested is bona fide), in recent years DOL has become increasingly skeptical and even downright hostile to new program participants.
Relative to established program users, new program users experience significantly higher risk of receiving a Notice of Deficiency (NOD) questioning whether their need for workers is truly temporary in nature. NODs of this variety are not routine matters – they require extensive documentation and evidence that can be a pain to assemble on short notice. Furthermore, receipt of a NOD can be make-or-break for employers in a race to beat the H-2B visa cap.
This scrutiny is not just limited to the Ninja Coaches and Sandwich Artists – it’s a program-wide phenomenon, wherein even cut-and-dried H-2B constituent industries are subject to DOL’s enhanced interrogation measures. It’s unclear whether this is a deliberate effort by DOL to limit program participation or simply a matter of traditional H-2B constituents become collateral damage in the Dog Stylist crossfire.
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But the most frustrating aspect of DOL’s scrutiny is not the scrutiny itself, but rather, how it demands employers survive it. It is certainly not unreasonable to require a written explanation of business circumstances, nor would any honest person object to DOL requiring some type of business record (sales records, contracts, etc.) to substantiate their need. We get it -- they have a job to do.
This does not, however, give DOL free license to demand huge volumes of documents as if it's a plaintiff in a class action lawsuit, or to insist that employers give evidence that simply does not exist. On more than one occasion, the agency asked landscaping employers to produce copies of every customer contract and invoice from the last three years -- often total thousands of pages of redundant documentation. One has to ask: is this really necessary? Is it helping?
Another conundrum: in virtually every NOD, the agency requests three years’ worth of payroll data reflecting the monthly totals of seasonal and year-round workers on the payroll, hours, and earnings. To satisfy DOL's line of questioning, this data must show a clear and unambiguous upward trend during the H-2B contract period. Failure to show such a trend may result in the agency denying the case outright.
But if employers had seasonal workers on their payroll already, they wouldn’t need H-2B workers. Employers are only using the program precisely because they do not have enough seasonal workers. And yet DOL looks to the absence of such workers as proof that the labor need does not exist? Talk about a paradox.
Two things can be true at once: DOL could have perfectly legitimate reasons for scrutinizing employers with questionable program eligibility. But it could also be the case that the agency has become too kneejerk and reactive across the board, imposing unreasonable standards on what should be shoe-in cases.
Employers just getting started in the H-2B program should take note and prepare accordingly. This includes working with your agent or attorney well in advance of the filing deadline to make sure that you are putting your best foot forward. Being proactive, and working with a competent agent, can make a big difference for your program viability.
Tom Bortnyk is Sr. Vice President and General Counsel at másLabor, the nation’s leading provider of comprehensive H-2B services. The company represents thousands of H-2B employers, in all fifty states and across nearly every industry. For more information, visit maslabor.com.