How Many and for What?

There are three US departments (Homeland Security, Labor, and State) and one home-state agency involved in issuing any of the eleven kinds of temporary worker visas. This is one reason it takes so long (75 days on average) for an American employer to get a response to a visa application. The US agriculture and hospitality sectors use the most temporary foreign workers.

There are eleven types of temporary worker visas because as the industrial and then the technology revolutions advanced in America, businesses required workers with different levels of education, training, and skill sets. More recently, globalization—with the US often at the center of international trade, finance, education, entertainment, and innovation plus the proliferation of multi-national supply chains and corporations—has led to the creation of many more reasons for foreigners to be in the US.

A few examples from among the eleven visa types illustrate this point: the H-1B is for a person with a specialty occupation, while the H-3 is for training/education in the US not available in their home country. Or P-1 is used by athletes competing or entertainers performing, here.

H-2A and the H-2B Visas:

All that being said, the H-2A (agriculture) and the H-2B (all other temporary work) are the ones most familiar to employers on Maryland’s Eastern Shore. The first one has no annual numerical cap, but the second does. In 2018, local crab processing businesses had difficulty getting enough H-2B foreign workers, which led to several crab-processing plants being forced to close. Eastern Shore nurseries and farms are other employers of many seasonal temporary workers. Tourist accommodation, food, entertainment venues, and bars apply for a number of H-2B visas during the summer months, but are capped.

2019 Applicable American Laws, Regulations, and Prescribed Processes:

Employers who apply for H-2A and H-2B visas are required to certify why they couldn’t hire Americans to do the work. They also have to document that wages and working conditions meet regional standards. For 2019, applications for H-2B visas will only be available for workers who already received an H-2B visa in the past 3 fiscal years. Also for 2019, prospective employers must show they will “…suffer irreparable harm without the additional workers.” According to CNN, the Florida Mar-a-Lago Resort has applied for 66 H-2B visas for servers and cooks for 2019.

There are 84 countries whose citizens a US employer is allowed to hire. The list goes from Andorra to Vanuatu. Mexico and most Central American and South American countries are included with the exception of Venezuela. Filipinos are being punished for over-staying and are not eligible in 2019.

The wife and minor children (under 21) of an H2A or H2B may separately apply for an H4 visa, but they are not allowed to work. The H-2A and H-2B may be extended in 1-year increments to a maximum of 3 years. Extensions are not limited by annual caps and have more time and a somewhat easier process to undergo than initial applications.

Help is Available for Employers Who Need to Apply for H-2A Ag Visas—Use the Emergency Option:

• Immediately email US Department of Labor at tlc.chicago@dol.gov to ensure you still have time. Subject Line: “H-2A Program Question: Immediate Need for H-2A Workers.” Use DOL’s iCERT portal.
• Begin H-2A visa application process, using the Emergency Filing Process (need to explain why).
• Submit a job order to Maryland Workforce Agency. Do both Chicago and Maryland at the same time.
• Forms: ETA Form 790 (for Maryland), ETA Form 9142A plus a cover letter asking for housing inspection.
• If denied, appeal to DOL’s Administrative Law Judge, request a hearing within 5 days.

Good Luck!