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If you're an employer already using the H-2B program, you know about the dreaded April cap. However, for employers that are new to the program, the H-2B cap is the number of new visas available. With only 33,000 visas available, demand far exceeds supply. Unfortunately, getting workers has never been more difficult with the H-2B program.
The first step of the H-2B process, applying for temporary labor certification, has a statutory timeline. Employers must submit an application for temporary labor certification 75-90 days ahead of their start date of need. However, the Department of Labor saw they would have an influx of applications requesting the first day of the cap, and implemented a "randomization" process to determine which cases it will work on first. This has, in turn, meant that although they are not the ones determining who gets into the cap, you have a very good idea whether you'll get in depending on where you end up in the randomization process.
The Department of Labor announced on https://www.dol.gov/agencies/eta/foreign-labor on January 4, 2022 that the Office of Foreign Labor Certification (OFLC) had published the assignment group(s) for 7,875 H-2B applications covering 136,555 worker positions with the start date of work of April 1, 2022. The first group, Group A, includes enough worker positions to reach the H-2B semi-annual visa allotment of 33,000. Six additional Assignment Groups were created for the remaining applications, each of which includes no more than 20,000 worker positions. The Department of Labor works through the groups in order, so group A first, then group B, etc.
A simple calculation shows that only 24% of the positions requested will have made it into Group A (the 33,000 group), which will likely get into the H-2B cap. This is the lowest percentage so far since randomization was implemented. Last year, they published that 5,377 H-2B applications covering 96,641 worker positions with the start date of work of April 1, 2021 were requested. That's a 34% chance of positions requested making it into the Group A, which were very likely to make it into the cap. In 2020, the OFLC received a total of 5,677 H-2B applications requesting 99,362 worker positions during this filing period. Again, that percentage was still higher at 33% chance of positions requested making it into Group A.
With results like this, what can be done? First, contact your Senator's office immediately. Let them know you would like the H-2B cap increased permanently. This will help our economy and our employers to find the workers needed for these positions. In addition, for the short term, ask your Senator to support releasing additional visas this year, especially for new workers. Although many companies have returning workers, new companies are left out when only returning workers can come because finding returning workers is so difficult. It is extremely important for us to put pressure on Congress to change how this program works, as it is clear the demand has increased but the law stays the same. We need change in order for our employers to have the number of workers they need to keep our companies in business. Let your Senator know now.
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