The H-2B program allows nonagricultural employers to hire foreign workers when they cannot find U.S. workers to perform temporary jobs. Since 2014, employers have repeatedly hit the H-2B cap of 66,000 visas, so Congress has repeatedly authorized the Department of Homeland Security (DHS) to permit workers to enter above the cap. DHS refused to allow any additional workers to enter above the cap after the unemployment rate spiked in March.
In June, President Trump went even further by banning many H-2B workers until the end of this year, which caused visas under the cap to be wasted. Now Trump is considering extending the H-2B ban into 2021. This is a bad idea. The ban was supposed to free up jobs for U.S. workers, but government data show that almost no U.S. workers applied for H-2B jobs, despite the spike in unemployment.
As I pointed out at the time, it made no sense to ban H-2B workers because every H-2B job must be offered to U.S. workers first. The Department of Labor (DOL) oversees U.S. worker recruitment under the H-2B program, and it will not certify an employer to hire H-2B workers unless it determines that there “are not sufficient U.S. workers who are qualified and who will be available” for the job.
Starting 90 days prior to the job start date, DOL requires that employers request that State Workforce Agencies refer U.S. workers (including those on unemployment insurance) to them. DOL advertises the job on an online site. All jobs must pay an inflated wage—known as the prevailing wage. Within two weeks of applying, employers must also contact former employees and ask them to return for the job. The employer can only stop accepting applicants 20 days before the date of need—after roughly two months of recruitment.
After 15 days of posting the job offer at the job site—a requirement that DOL changed to 30 days during the pandemic—employers will submit proof in a recruitment report that they fulfilled all the requirements. Despite the increased recruitment requirements, President Trump’s H-2B ban, general COVID-19 travel restrictions, and massive increase in unemployment, very few U.S. workers applied for H-2B jobs.Read the rest of this post →