H-2B Visa Increase Highlights Need for Workers of All Skill Levels

April 23, 2021

After determining that the needs of American businesses cannot be met by the available U.S. workforce, the Department of Homeland Security issued a supplemental increase of 22,000 H-2B temporary non-agricultural worker visas.  The move underlines perennial labor force shortages of both low-skilled and high-skilled workers and the need to raise visa caps to help fill the resulting job vacancies. 

Demand annually exceeds the cap of 66,000 available H-2B visas.  Despite rhetoric against foreign workers, President Trump raised the H-2B cap each year of his presidency in response to pressure from business groups. 

There are vigorous requirements to protect U.S. workers.  Employers seeking to hire workers on these additional H-2B visas must certify with the U.S. Department of Labor that no American workers are available to fill the role and continue efforts to recruit U.S. workers.  Meanwhile, employers must pay high-skilled workers on H-1B visas at least the same wage rate as paid to other employees with similar experience and qualifications or the prevailing wage for the occupation in the area of employment, whichever is higher.

The pandemic may serve as a case study for the impact of fewer temporary work visas.  In June of 2020, President Trump banned the issuance of most new H-1B visas for high-skilled workers and L-1 visas for intracompany transfers.  H-1B visas plunged 94% from June to December of 2020, compared with the same period a year earlier.  Similarly, L-1 visas fell 95%.  Yet according to the Wall Street Journal, the vacant jobs did not go to American workers, but rather went unfilled or moved overseas.

Why it's important:  President Biden allowed the ban on new visas to expire at the end of March.  However, the view that foreign workers on temporary visas are harmful to American workers is on display in several Biden administration rulemakings seeking to make it more difficult to hire early-career workers on H-1B visas.  These are facing legal challenges from employers and others as violating the Immigration and Nationality Act.