If USCIS approves a petition and employers finish accepting U.S. workers, then employers can recruit foreign workers (Figure 2, Step 8). Workers must ordinarily apply for H-2B visas to the State Department at a U.S. consulate or embassy if they are abroad (Step 9). Canadians, as well as Bahamians and Bermudians, are exempt from the visa requirement.76 In June 2020, a presidential proclamation suspended the issuance of visas to H-2B workers who had no valid visas in June 2020 unless the workers sought and received waivers showing that they are returning to employers that trained them, or unless the denial would cause their employers hardship.77 The proclamation is effective until March 31, 2021, but could be renewed.
Each H-2B worker pays a $190 visa processing fee, which employers must either advance or reimburse within the first week.78 Usually, consulates must fingerprint and interview each applicant, although these can be waived for workers returning within 24 months.79 H-2B visas are valid for multiple entries but only for the same period as the petition, necessitating a new visa for each new job if workers return home.80 If visas were valid for a longer period, fewer workers would count against the H-2B visa cap.
The visa application can also delay workers. In 2020, consular officers refused 19 percent of H-2B visa applicants, but after the applicants submitted additional evidence the final refusal rate fell to 10 percent.81 These rates have fallen from highs of 44 and 25 percent, respectively, in 2009 (see Appendix Table E). The State Department does not publish specific reasons for these refusals,82 but the primary purpose of the visa process is to prove “nonimmigrant intent” — that is, proof of strong ties to the worker’s home country that would motivate the worker to return home — so this requirement likely accounts for most denials.83
However, other issues can arise. The USCIS ombudsman reported a case where, in 2012, a consular official initially rejected workers because he felt that they could not adequately explain their job duties, thus risking $1 million in contracts for a U.S. landscaper, until the ombudsman intervened.84 The ombudsman has said that “delays at any point in [the H-2B] process can have severe economic consequences for U.S. employers.”85 Unfortunately, the federal government does not track how often guest workers arrive after the start date.86
Visas authorize travel to the U.S. border, where Customs and Border Protection (CBP), another agency within the Department of Homeland Security, screens workers and grants them admission (Figure 2, Step 14). Workers receive an entry document (I-94) authorizing their H-2B status for the job’s duration, plus up to 10 days to travel to the job and 10 days to travel back home or find a new job.87 Importantly, the fact that the regulation entirely ties the length of status to the TLC’s job length ensures that all returning workers who leave the United States are counted against the cap every year whenever they return under a new petition.88 CBP charges an entry fee of $6 per worker, which employers must repay, and workers often wait in line several hours to enter the country.89
When workers do start, employers must guarantee that they will pay three quarters of all hours offered at the prevailing wage determination for three‐quarters of every 12‐week period of the job at 35 hours per week — even if the job finishes early — to both H-2B and U.S. workers in “corresponding employment.”90 Objecting to these requirements, Congress has repeatedly prohibited DOL from using funds in each congressional appropriations law that it has passed since 2015 to enforce both the “three quarters guarantee” (for all workers) and the “corresponding employment rule” (for U.S. workers not hired through the H-2B job order process).91 Should Congress allow DOL to enforce the rules, the agency claims that it will target employers for violations in prior years.92
Beyond the prevailing wage determination, these requirements are the most complex and expensive of H-2B’s major rules (see Text Box 1). The three‐quarters guarantee imposes significant risk for employers if a job completes early or cannot start on time, which is very difficult to predict months in advance. Commenting on this rule, the Small Business Administration’s Office of Advocacy noted, for example, that “forestry contractors cannot schedule tree planting in advance because the weather changes for weeks at a time — the ground can be too hot, too frozen, too wet or too dry to plant.”93 Because all jobs on a temporary labor certification must occur during the exact same period, employers also cannot stagger the entry of H-2B workers as they ramp up operations. Seafood employers can use staggered entries but only because Congress forced DOL to allow them to.94