By Tom Bortnyk
From the October 2024 Issue
The H-2B program has become a mainstay in the green industry, satisfying labor needs for countless landscaping contractors. Each year, foreign workers travel from Mexico and Central America for landscaping jobs in the U.S., creating a unique public policy win-win for workers and the U.S. businesses that rely on them.
The program’s greatest limitation – dealbreaker for some – is a statutory “cap” on visa issuance. Established in the early 1990s, the H-2B visa cap limits the number of visas to just 66,000 annually, divided into equal allotments of 33,000 for each half of the fiscal year.
As program users are aware, 33,000 available visas are a drop in the bucket compared to the hundreds of thousands of visas requested for the Spring months; the lion’s share of which comes from landscapers. To cope with the limited supply and skyrocketing demand, the U.S. Department of Labor (DOL) utilizes a randomized lottery system to determine processing order, which determines winners and losers under the cap. All employers who submit their H-2B application within the first three days of the filing window are sorted into lottery groups, with Group A receiving priority, Group B next, and so on.
The unpredictability of the lottery system has served to undermine the reliability of the H-2B program as a solution for America’s labor shortage. This is why the H-2B user community has long lobbied for permanent cap reform, if not outright abolition.
Fixing the cap on a permanent basis requires a statutory change that can only come from Congress. Unfortunately for H-2B users, getting anything done in Congress is an uphill battle, especially getting something that even remotely resembles immigration reform. There simply is not the political willpower – or bipartisan consensus – to achieve that heavy a lift.
Considering these program realities, its essential H-2B program users understand their odds and options. While the lottery poses a major procedural hurdle, it is not determinative of employers’ ultimate success in the program. Contrary to popular belief, there are several different strategies employers can utilize to minimize the impact of the lottery and set their business up for success.
It’s best to think of the H-2B program as a game of roulette – you can’t change the randomness, but you can make informed choices that alter your probabilities.
Cap Relief
While permanent cap reform remains politically out of reach, what has been achieved are stop-gap measures. Thanks to the relentless lobbying and grassroots efforts, Congress has, for the past several years, agreed to one-time cap relief measures.
Unlike the full statutory change that would accompany a permanent cap, these one-time measures have been buried into omnibus spending packages that fund the U.S. Department of Homeland Security (DHS), giving political cover to representatives who might otherwise oppose such measures. Generally, cap relief measures give DHS discretionary authority to issue additional visas above and beyond the 66,000 allowed under the cap – typically with strings attached.
In fiscal year 2024, DHS allocated over 44,000 additional visas for returning workers (i.e., workers who held H-2B status within any of the prior three years). They were divided into three separate allotments for different times of year, plus another 20,000 visas for nations of El Salvador, Guatemala, Honduras, Haiti, Colombia, Ecuador, and Costa Rica. The latter allocation – the “Northern Central America (NCA)” allocation – is intended to further the Biden Administration’s efforts to curb illegal immigration from those countries.
Cap relief is the most attractive option for returning H-2B program users in good-but-not-great lottery groups. Employers in lottery Groups B and C, for example, are usually first in line for the cap relief visas and most likely to take advantage before the supply becomes exhausted. Cap relief is also an attractive option for employers who wish to hire from the NCA countries. In each of the past several years, the NCA cap allotment has been adequate to satisfy the available demand, giving employers a viable pathway.
Cap relief may not be an option for all employers. Because of the returning worker requirement, it may be difficult for first-time users to recruit eligible workers, who likely already have jobs lined up. If the regular supply is exhausted, NCA allotment may be the only option for long-time program users who would prefer a reliable crew of their returning workers from other countries.
The October Strategy
Another option for employers is what is known as the “October Strategy,” and it relies on the program mechanics surrounding cap exemption. To understand the October Strategy, employers should first understand how DHS enforces the H-2B cap. Next, employers must understand foreign workers are only counted against the cap once in any given fiscal year. A worker who receives an H-2B visa or is conferred H-2B status any time on or after October 1, 2024, for example will be counted against the 2025 visa cap.
In that scenario, the worker will be deemed cap exempt for any subsequent H-2B employment for the remainder of the fiscal year (ending September 30, 2025), regardless of whether he or she remains in the U.S. or returns home. This means employers unsuccessful in the lottery may be able to use the exemption system to their advantage to have a very high probability of success the following year.
Imagine that you’re a landscaping contractor with Spring labor needs that run through the Fall or early Winter. If you receive a poor lottery assignment in Spring and are not able or willing to take advantage of cap relief, you may choose to withdraw your Spring application and re-file an H-2B application for the tail end of your original contract period – i.e., October 1 through November or December.
Doing so would require you to forgo having workers in the Spring or Summer but could enable you to secure workers for the Fall months, given that demand for Fall allotment is far less significant. Workers hired in the Fall of the current calendar year (start of the new fiscal year) will thus be cap exempt for the Spring of the following calendar year (second half of the fiscal year).
So, workers would arrive late, finish out the season and return to their home country. Then, in the Spring, you would bring those specific workers back on a cap exempt basis, thanks to the Spring falling in the same fiscal year as when they were originally issued visas and counted against the cap. The October Strategy is most attractive to employers who have significant Fall needs (leaf clean-up for example) who wish to defer gratification and all-but guarantee the ability to secure key workers for the following Spring, regardless of future lottery result.
The Bottom Line
The H-2B lottery is not ideal, but being smart when it comes to strategy can make the process a lot less painful. At minimum, employers should educate themselves on the nuances and procedural complexities of the program to understand what options are available. The lottery may be random, but how you respond to your lottery results can make all the difference.
Tom Bortnyk is Senior Vice President of Development and General Counsel for másLabor, the nation’s leading provider of comprehensive H-2A and H-2B services. másLabor has clients in all 50 states and represents a wider range of industries than any other service provider.
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