H-2B Non-agricultural Worker Program and Seafood Industry

Over the last several years, there have been significant regulatory and proposed changes, and litigation relating to the adjudication of the Application for Temporary Employment Certification for the H-2B Program with DOL. The most recent was made early this year when the President signed into law the Consolidated Appropriations Act of 2014 (the “2014 Appropriations Act”), Pub. L. 113- 76, which includes a provision permitting staggered entry of H-2B workers employed by employers in the seafood industry under certain conditions. This provision expires on September 30, 2014. Seafood is defined as fresh or saltwater finfish, crustaceans, other forms of aquatic animal life, including, but not limited to, alligator, frog, aquatic turtle, jellyfish, sea cucumber, and sea urchin and the roe of such animals, and all mollusks    

All employers submitting an H-2B Application for Temporary Employment Certification must accurately indicate their temporary need, including the starting and ending dates of need for the period they intend to employ H-2B nonimmigrant workers. However, the 2014 Appropriations Act permits employers in the seafood industry to bring into the United States, in accordance with an approved H-2B petition, nonimmigrant workers at any time during the 120-day period on or after the employer’s certified start date of need if certain conditions are met.


There are only a few avenues for U.S. employers to access essential workers in those instances in which no U.S. workers are available.  The H-2B non-agricultural temporary worker program is one of them with an annual restrictive cap of 66,000 visas.  The H-2B program allows U.S. employers to hire foreign nationals to fill temporary non-agricultural, seasonal, or short-term jobs such as restaurant workers, retail clerks, carpenters, plumbers, roofers, manufacturing line workers, hotel service workers, food production workers, landscape workers, and health care aides when they cannot find Americans to hire. 


H-2B non- and semi-skilled workers have performed tasks essential to the economies of communities across the United States. The tourism industry from Maine to Alaska, the construction industry in Alabama, the timber industry in Maine, the seafood and timber industries in Louisiana, the food processing industry in North Carolina, and the shrimp industry in the Southeast are but a few of the industries that have depended on the H-2B program to bring in needed workers.


For a U.S. employer to hire an H-2B worker, a multitude of steps must be completed: 1) Recruit U.S. workers under the direction of the State Workforce Agency (SWA) and receive certification that an insufficient number of American workers were willing and able to fill the vacant positions; 2) Apply for certification of need at the federal level from the U.S. Department of Labor; 3) File with the Department of Homeland Security applications and fees for H-2B workers; and 4) Obtain approval for H-2B visas from the U.S. State Department. There are a number of applicable statues under the Immigration and Nationality Act (INA) and the Department of Labor regulatory provisions under Title 20 CFR. The statutory and regulatory provisions should be reviewed carefully before any steps are taken.


There is a statutory numerical limit, or "cap," on the total number of foreign nationals who may be issued a visa or otherwise provided H-2B status (including through a change of status) during a fiscal year.  Currently, the H-2B cap set by Congress is 66,000 per fiscal year, with 33,000 to be allocated for employment beginning in the 1st half of the fiscal year (October 1 - March 31) and 33,000 to be allocated for employment beginning in the 2nd half of the fiscal year (April 1 - September 30). The 66,000 cap on the H-2B program has not been adjusted since the visa category was initially capped in 1990. H-2B workers go home at the end of the season. They cannot stay in the US permanently through this program.


If you have questions about the H-2B nonimmigrant classification, please contact Sujin Kim, Esq. at (251) 379-8065/ (251) 387-2544 or skim@gcimmigration.com