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The state of the H-2B visa program: What you should know

The state of the H-2B visa program: What you should know

| Sep 9, 2020 | Business-Based Immigration

The H-2B program is among the most in-demand options out there for nonimmigrant worker visas. There is an annual cap of 66,000 H-2B visas per year and a lottery is conducted twice a year. Demand for H-2B visas frequently exceeds the annual allotment by 200 -300%. To participate in the lottery, it is critical that workers and businesses begin preparing at least six months in advance of the intended start date.

The H-2B visa – like many immigration programs – has seemingly been in a constant state of flux.  This has been particularly true in recent months, thanks to some abrupt policy changes. So where do things actually stand as we enter the latter part of 2020?

Fact-checking the H-2B suspension

On June 22, 2020, the White House issued a proclamation suspending entry of certain nonimmigrant workers. This freeze is in effect through the end of 2020 and includes H-2B visas. There is some nuance to the order, however, and it does not affect everyone.

This proclamation does not apply to:

  • Individuals already in the U.S. in H-2B status as of June 24, 2020 (when the proclamation went into effect)
  • Those who had a valid H-2B visa on June 24, 2020

In August, the U.S. State Department provided new details about National Interest Exceptions (“NIE) to the H-2B visa suspension. These exceptions apply to applicants whose travel is necessary to:

  • Meet “critical foreign policy objectives” or satisfy obligations that are part of a treaty or contract and/or
  • Support the “immediate and continued economic recovery” of the U.S. and can show at least two of the following three criteria:
    • The H-2B worker was previously trained and employed by the H-2B petitioning employer under at least two prior H-2B petitions.
    • The H-2B worker will be entering the U.S. on a temporary labor certification (“TLC”) that “reflects continued need for the worker.” The U.S. Department of State has indicated that this criterion is more likely to be met if the TLC was approved in or after July 2020.
    • The H-2B petitioning employer will suffer financial hardship if the H-2B visa is denied.

Before approving the NIE and issuing the H-2B visa, the consulate may contact the H-2B petitioning employer directly to confirm the basis for the NIE.

New fees are in effect as of Oct. 2, 2020

In addition to the suspension proclamation, employers hoping to utilize H-2B workers need to account for some higher fees. As of Oct. 2, 2020, the $460 petition fee increases to $715 for named workers. (The fee drops to $385 for unnamed workers.)

As Forbes points out, applications for named beneficiaries will be capped at 25 workers, down from 100-plus. This could result in increased costs on the business side.

Obtaining an H-2B visa has never been as simple as ticking a box. In these uncertain times, however, preparation and knowledge are more important than ever. By enlisting help from a professional that stays up to date on every little rule change, you give yourself the best odds for a successful filing.