.png "H-2A and H-2B Visa Program for Temporary Workers")
Rachel Beardsley and Laura Flynn
November 04, 2022
Newsletter ArticleH-2A and H-2B Visa Program for Temporary Workers
Due to the increase in demand for labor, the H-2 visa program can be utilized as a responsive measure to directly respond to employer labor shortages by providing U.S. employers with the ability to recruit temporary workers from the U.S. Department of Homeland Security (DHS)’s list of eligible countries as well as provide protections for U.S. and foreign temporary workers.
The H-2 visa is divided into two visa programs: H-2A for agricultural workers to fill temporary agricultural-based jobs for which U.S. workers are unavailable and H-2B for non-agricultural workers to perform jobs which are temporary or seasonal in nature to fill a shortage of U.S. workers.
H-2A Visa Option
The H-2A program allows agricultural employers who anticipate a shortage of U.S. workers, on a temporary or seasonal nature, to bring international workers to the U.S. for assistance in performing temporary agricultural labor or services, such as planting, cultivating, or harvesting. Employment is of a seasonal nature where it is tied to a certain time of year by an event or pattern, such as a short annual growing cycle, and requires labor levels above what is necessary for ongoing operations. Employment is of a temporary nature, when the employer's need to fill the position with a temporary worker will, except in extraordinary circumstances, last no longer than one year.
Drawbacks
Narrow Definition of “Agriculture”
The Department of Labor (DOL) defines agriculture as including farming in all its branches when performed by a farmer or on a farm as an incident to or in conjunction with such farming operations.
Wage
While employers must pay wages and benefits packages at rates set by the DOL, the wages that are paid to H-2A workers must meet a minimum wage called the Adverse Effect Wage Rate (AEWR), which in most circumstances are more costly than minimum wage, given that the AEWR is a regional average wage based on annual government surveys that do not take into consideration job types, skills, and experience.
Travel, Living and Transportation Expenses Covered by Employer
The employer must provide housing at no cost to the H-2A worker and those workers in corresponding employment who are not reasonably able to return to their residence within the same day. This may include employer-provided housing or rental and/or public accommodations.
Additionally, the U.S. employer must provide each worker with three meals per day or must furnish free and convenient cooking and kitchen facilities to the H-2A worker that will enable the workers to prepare their own meals.
Transportation is also required to be provided (1) to place of employment; (2) from place of employment, and (3) between living quarters and worksite.
Benefits
While the H-2A visa is restricted to temporary or seasonal jobs lasting less than a year, no numerical limitation on the visa classification is imposed.
Additionally, unlike other visa classifications, there is no formal educational requirement required for either the H-2A or H-2B visa. From an employer standpoint, this enables a wider range of individuals to be qualified for the position.
H-2B Visa Option
Seasonal non-agricultural workers, both skilled and unskilled, may apply for an H-2B visa to the U.S. The H-2B program is designed for a position for which there is a shortage of U.S. workers willing or able to take the job. This visa is used for a wide variety of worker types, such as business trainers, entertainers, athletes, meat trimmers, ski instructors, and home attendants for terminally ill patients. Employment is of a temporary nature normally lasting fewer than nine months during peak-load, seasonal need, intermittent-need, or due to a one-time occurrence at an employer.
Drawbacks
The H-2B visa is subject to a statutory annual cap of 66,000 visas a year in two periods consisting of 33,000 available visas. For dairies and other animal farms who have a demand for labor year-round, the cap coupled with the temporary nature of the visa may limit participation. Importantly, in the past five years, there has been high demand for H-2B visa numbers, and in many instances the H-2B cap has been met. As such, there is not a guarantee of receiving H-2B visa numbers for the requested period.
Benefits
Driven by broader economic conditions, the DOL has adjusted the program to meet the growing need for temporary workers in the U.S. Most recently, the DOL has randomly increased the number of H-2B visas available for selection to meet employer needs. For example, the DOL recently added 35,000 H-2B visas for petitions with April 1, 2022, start dates making 68,000 H-2B visas available for this time-period instead of the normal 33,000.
Additionally, DHS and the DOL announced in mid-October that for the October 1st start dates, they will soon be issuing a regulation that will make available to employers an additional 64,716 H-2B temporary nonagricultural worker visas for fiscal year 2023. This number is in addition to the 66,000 H-2B visas that are normally available each fiscal year.
Also, unlike the H-2A visa, the H-2B visa is not subject to travel, living, and transportation fee cost requirements.
Conclusion
Whichever H-2 option U.S. employers choose to pursue to meet their business needs, employers can rest assured that the H-2 visa program provides temporary work authorization pathways to fulfill demands and maintain competitive edge in their industry, while also allowing international workers to take advantage of temporary U.S. work authorization.
Fragomen is a firm of more than 4,300 immigration-focused professionals and staff spanning more than 55 offices worldwide. Immigration has been their sole focus for 70 years, and today they offer support in more than 170 countires. Learn more at www.fragomen.com
Click here to see another article by Fragomen: Work Visa Strategies and Solutions for University Students on F-1 Visas | AgCareers.com
