U.S. jobs need more workers on H2B visas

Mexican workers, on the US H-2B visa program for seasonal guest workers, process crabs in Fishing Creek, Maryland, on August 26, 2015. (Reuters / Jonathan Ernst)

Immigration to the United States can be broadly divided into three categories — humanitarian (where the politicians and media focus), family-based (where most of the action happens in normal years), and employment or business immigration.

Even the term “employment immigration” or “business immigration” can be a misnomer, as most work visas are NON-immigrant in nature; meaning, they only let you stay for a certain time in a certain job for a certain employer, versus an immigrant petition from a family member or employer, which could grant permanent legal status.

The jobs need people

Most of the time, people need jobs. But all over the country, businesses in many different industries are understaffed. Now it’s the jobs that need people.

There are theories for why this is so. Some might say that $600 checks from 2 years ago kept people from working until now. Others might point to the slowdown in processing caused by the pandemic.

One of the temporary work visas we have seen a lot of growth in is the H-2B, which usually lasts for up to a year, and can be renewed yearly for up to 3 years in a row. H-2Bs were traditionally used for seasonal jobs like landscapers or employees of hotels and resorts.

Now, we are seeing a boom in them, especially for caregivers and medical aides, often with no experience required. As the boomer generation ages, more and more of them are going to assisted living facilities or nursing homes.

Some luck required

The American immigration system is not actually set up to help American employers hire foreign workers. In fact, it’s the opposite. It’s set up to protect American workers and maintain the prevailing wage for any given profession in any particular part of the country.

The process starts with determining the prevailing wage. The Department of Labor keeps figures for the wage someone in a certain profession should be making in their country or metropolitan area. Employers have to commit to paying at least that (so as not to depress the local wages) and also show that they have advertised for and tried to recruit American workers for these jobs but can’t find them. They also have to prove that they need workers and are willing to pay at least the prevailing wage for that profession and qualifications.

Only a specific list of countries qualify. People born in the Philippines have traditionally been on the list. In 2019 though, we were banned from both the H-2A (agricultural) and H-2B (non-agricultural) temporary worker programs because of too much fraud and overstaying. We only recently got back on the list in 2021.

For other working visas like the H-1B, even if you do everything right, there’s only about a third of a chance that you’ll succeed to get one of the 85,000 visas per year. For the H-2B, the odds are much higher. There have traditionally been 33,000 H-2B visas issued for work seasons starting April 1st and 33,000 for work seasons starting October 1st. But in recent years, the government has released tens of thousands more visas every 6 months.

People still need jobs

Being business or employment-based immigration. H-2B slots are issued to the employers. A Filipino worker can’t self-apply for an H-2B.

However, an employer can prove the need, prove that they tried and can’t find American workers, and that they’re not going to depress the wage market because they can and will pay the prevailing wage, and that the job is seasonal, peak-load, or a one-time occurrence. Assuming a successful application, then the employer can be awarded, for example – slots for 10 caregivers in an assisted living facility.

Only after the employer has secured the visa slots do the people apply for their visas. This last step is done through the US embassy in Manila, and includes checking your criminal and international travel history, along with making sure that you have the qualifications for the job.

From end to end, the H-2B program takes about 5-6 months for the application process, and there are two possible start dates – April 1 or October 1 of each year. An H-2B visa usually lasts for a year, and can be renewed for up to 3 total years before the beneficiary has to leave the US for at least 3 months before they can apply again for renewal or another type of visa.

Quick disclaimers

First things first – you can’t just apply for an H-2B yourself. In business immigration, the employer is the petitioner, and they are the ones who file for X number of working visa slots. The employer needs to apply for a prevailing wage determination and a labor certification to bring people in. They also need to provide a recruitment report to show that they tried to hire American workers and could not find anybody to work, even though they’re offering at least the correct wage for that profession in that geographic area.

Be aware that in-family and relative petitions get scrutinized more closely, and that this program is meant to be temporary. People from the Philippines previously lost our eligibility for this visa in the past because of too much fraud, so if you don’t have honest intentions, please don’t ruin things for everyone else. Don’t think of it as a back door into the US, but a way to work for a few years and save up some money – if you can find an employer to hire you and sponsor your working visa.

Working visas are also much more complicated than your average family-based visa application, so I would not recommend doing this yourself. You definitely want to consult and engage a real immigration attorney to handle this process for you.

But you own or manage a business and are struggling to find workers, you could look to programs like the H-2B to bring in workers from the Philippines. It’s a way to find labor in a time when unemployment is low and the jobs can’t find people.

Jath Shao is a friendly neighborhood immigration lawyer who helps people, businesses, and families. Born in Manila and based in the Midwest, Jath is a father, a husband, and the central region governor of the National Filipino American Lawyers Association. Contact [email protected] for any questions or comments