Labor Shortage Solutions: H-2B Visa Program

The labor market has created challenges for employers across all industries. Particularly the manufacturing space has faced challenges meeting the needs of peak and seasonal demands. These challenges have led to an increased popularity in the DOL’s H-2B visa program. The H-2B program is designed to allow employers to hire nonimmigrant workers to assist in one-time occurrence, seasonal, peak load, and intermittent workloads. The DOL defines these seasons as jobs requiring 12 months or less of work in which an employee is required to work a minimum of 35 hours per week.

According to the H-2B Disclosure Data issued by the DOL, Pennsylvania had the 2^nd highest number of H-2B workers requested in the country during Q3 2022. According to those same statistics, Pennsylvania employers requested H-2B workers to stay for an average of 239 days during Q3 2022. In addition to being used by some Pennsylvania manufacturers, several other industries in our region are utilizing the H-2B program such as the construction, landscaping, and hospitality industries.

H-2B Employer Requirements

To qualify for the program, employers must meet the criteria below.

• An employer must first advertise available positions through the DOL seasonal job website.
• An employer must hire any eligible U.S. worker who applies for the job up until 21 days from the start date.
• Employers must contact its U.S. workers employed in the previous year in the positions to be filled by H-2B workers.
• Employers must disclose the terms of the job and request that U.S. workers return.
• H-2B workers cannot be used to replace U.S. employees who are on strike, lockout, or laid off within 120 days of H-2B work.

If the above criterion is met, employers may be eligible to pursue the H-2B visa program. In addition to the criteria noted above for eligibility, H-2B employers are required to offer H-2B employees a wage equal to the mean for the occupation in the geographic area where the work is being performed based on the occupational employment statistics survey provided by the DOL. Additionally, employers are also responsible for the costs to bring in, house, equip, and return these workers to their home country. Employers must directly pay, reimburse, or pay employees in advance for these expenses. A listing of common expenses can be found below.

• Fees associated with obtaining a visa
• Border fees
• Transportation to the job location
• Transportation back to their country of origin
• Lodging expenses
• Tools, supplies, and equipment required for the job

If the H-2B program is an opportunity for your organization, please refer to the DOL website for more information. For additional discussion over the Manufacturing industry and the labor challenges it has faced please refer to this recent blog post. We will continue to monitor the challenges and opportunities that emerge over the coming months and discuss the industry’s responses in future posts. For more information regarding our manufacturing experience, be sure to visit our Manufacturing Services page and don’t hesitate to reach out to a member of our manufacturing team.

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