March 4, 2019
Employers that want to hire seasonal guest workers with H-2B visas will now have to go through at least two separate lotteries to employ them.
Beginning July 3, the Department of Labor (DOL) will change its procedures for processing H-2B applications for labor certi¹cation. Visa applications will be randomly ordered for processing based on the date of filing and the start date of work requested. Employers with certified petitions will then likely enter another lottery held by U.S. Citizenship and Immigration Services (USCIS). Labor certi¹cation ensures that employers are not displacing or negatively impacting the wages and working conditions of U.S. workers and must be obtained before employers can petition USCIS for visa approval.
The DOL’s labor certification processing is currently conducted on a first come, first served basis—timed down to the millisecond—and coupled with the limited number of visas available, that process created an incentive for employers to file their applications as early as possible. But that experiment, begun in 2018, led to the DOL’s O¾ce of Foreign Labor Certi¹cation’s electronic filing system crashing Jan. 1 due to “unprecedented demand.”
The DOL attempted the process “to promote fairness in response to the unprecedented volume of applications” the agency received. It decided that sequentially assigning H-2B applications to analysts based on the calendar date and time on which the applications were received, measured to the millisecond, better re¼ected the order in which applications were filed.
On Jan. 1, the agency received 5,276 applications for more than 96,400 workers, nearly three times the 33,000 visas available for the spring and summer seasons. Five minutes after filing had opened, there were nearly 23,000 login attempts—30 times the number of users the previous year.
“Because of the intense competition for H-2B visas in recent years, the department’s technology and available sta· resources have been challenged to handle the increasingly large volume of H-2B applications ¹led on Jan. 1 of each year,” the DOL said.
Starting with the next ¹ling period July 3, the DOL will randomly select for processing those applications that have a worker start date on the earliest possible date for the season—either Oct. 1 or April 1—and were received during the firrst three calendar days of the ¹ling period. After the first three days, applications will be chosen at random for processing each day.
[Visit SHRM’s resource page on workplace immigration (www.shrm.org/ResourcesAndTools/Pages/workplace-immigration.aspx).]
From Lottery to Lottery
USCIS has begun to hold a lottery of its own because of the extent to which demand for visas for seasonal workers has outpaced supply in recent years.
The agency announced Feb. 22 that it had conducted a lottery for the 33,000 H-2B visa petitions for the second half of fiscal year (FY) 2019. The agency first held a visa lottery last year.
What Will DHS Do?
To address chronic labor shortages, Congress in February gave the Department of Homeland Security (DHS) the authority to more than double the number of H-2B visas available through the end of FY 2019. The number of visas could increase from 66,000 to 135,000.
DHS authorized an additional 15,000 visas when granted the authority the last two years. Yet another lottery was held for those visas, and employers had to prove they would face severe economic harm without the access to foreign labor.