Introduction

The United States has a long history of importing foreign temporary workers, who are sometimes referred to as guest workers. In the past, guest workers were used to address U.S. worker shortages during times of war. Notably, the controversial Bracero program, which began during World War II and lasted until 1964, brought several million Mexican agricultural workers into the United States.

Today, the Immigration and Nationality Act (INA)¹ provides for the temporary admission of agricultural and nonagricultural workers to the United States through the H-2A and H-2B visa programs, respectively. H-2A and H-2B workers fill jobs that do not require much formal education. H-2A workers perform seasonal or temporary agricultural labor. They also engage in range herding and livestock production. H-2B workers perform temporary jobs in a variety of fields including landscaping, meat and seafood processing, and construction. The H-2A and H-2B programs, which are subject to detailed recruitment and other requirements, seek to meet the legitimate temporary labor needs of employers while providing protections to U.S. and foreign workers.

The difficulty in balancing the needs of employers and workers in guest worker programs is reflected in ongoing debates about such programs. Some view guest worker programs as helpful to businesses with seasonal needs and "to our long-term economic health" and call for their expansion and simplification.² Others see these programs as "having numerous programmatic flaws that undermine labor standards and leave migrant workers vulnerable to abuses."³

This report covers the H-2A temporary agricultural worker program and the H-2B temporary nonagricultural worker program. It explores the statutory and regulatory provisions that govern each program, focusing in particular on the much-debated labor certification process. It discusses past and present legislative efforts to reform the H-2A and H-2B programs and to create new guest worker visas, and identifies and analyzes key policy considerations to help inform future congressional action.

Overview of H-2A and H-2B Visas

The INA enumerates categories of aliens,⁴ known as nonimmigrants, who are admitted to the United States for a temporary period of time and specific purpose. Nonimmigrant visa categories are identified by letters and numbers, based on the sections of the INA that authorize them. Among the major nonimmigrant visa categories is the "H" category for temporary workers. It includes H-2A and H-2B visas for guest workers,⁵ as well as visas for specialty occupation workers.⁶

The INA, as originally enacted in 1952, authorized an H-2 nonimmigrant visa category for foreign agricultural and nonagricultural workers who were coming temporarily to the United States to perform temporary services (other than those of an exceptional nature requiring distinguished merit and ability) or labor. The 1986 Immigration Reform and Control Act (IRCA)⁷ amended the INA to subdivide the H-2 program into the current H-2A agricultural worker program and H-2B nonagricultural worker program and to detail the admissions process for H-2A workers. The H-2A and H-2B programs are administered by the U.S. Department of Homeland Security's (DHS's) U.S. Citizenship and Immigration Services (USCIS) and the U.S. Department of Labor's (DOL's) Employment and Training Administration (ETA).

While there are many differences between the H-2A and H-2B programs, the process of bringing in workers under either one entails the same basic steps (see Figure 1). Employers who want to hire workers through either program must first apply to DOL for labor certification. After receiving labor certification, a prospective H-2A or H-2B employer can submit an application, known as a petition, to DHS to bring in foreign workers.

Figure 1. Bringing in H-2A and H-2B Workers

Source: CRS presentation of information from U.S. Department of Homeland Security, U.S. Citizenship and Immigration Services.

If the petition is approved, foreign workers who are abroad can go to a U.S. embassy or consulate to apply for an H-2A or H-2B nonimmigrant visa from the U.S. Department of State (DOS). As part of the visa process, most applicants must be interviewed, unless the interview requirement is waived.⁸ The INA authorizes consular officers to waive nonimmigrant visa interviews in certain cases.⁹ It also authorizes the Secretary of State to waive visa interviews upon a determination that such a waiver is "in the national interest of the United States" or is "necessary as a result of unusual or emergent circumstances."¹⁰ If the visa application is approved, the worker is issued a visa that he or she can use to apply for admission to the United States at a port of entry. If admitted, the H-2A or H-2B worker can commence employment on the work start date.

The last part of the process is different if the foreign worker who the prospective H-2A or H-2B employer wants to employ is already in the United States. (There is no visa application step if the beneficiary of the petition is in the United States.) In such a case, the employer requests as part of the petition that the worker be granted an extension of stay (if the worker holds the relevant H-2A or H-2B status) or a change of status/extension of stay (if the worker is in another nonimmigrant status). If the petition is approved, the H-2A or H-2B worker can commence employment on the work start date.¹¹

Temporary Labor Certification

DOL's ETA administers the labor certification process under the H-2A and H-2B programs. Under both programs, employers submit applications to DOL in which they request certification for a particular number of positions. (See Appendix A for labor certification data for the top states.)

INA provisions on the admission of H-2A workers state that an H-2A petition cannot be approved unless the petitioner has applied to DOL for certification that

(1) there are not sufficient workers who are able, willing, and qualified, and who will be available at the time and at place needed, to perform the labor or services involved in the petition, and

(2) the employment of the alien in such labor or services will not adversely affect the wages and working conditions of workers in the United States similarly employed.¹⁷

There is no equivalent labor certification requirement in statute for the H-2B visa. The INA, however, does contain some related language. For example, it defines an H-2B alien, in relevant part, as an alien "who is coming temporarily to the United States to perform other temporary service or labor if unemployed persons capable of performing such service or labor cannot be found in this country."¹⁸ The H-2B labor certification requirement instead appears in DHS regulations, which state

The petitioner may not file an H-2B petition unless the United States petitioner has applied for a labor certification with the Secretary of Labor ... and has obtained a favorable labor certification determination.¹⁹

The H-2A and H-2B labor certification requirements are intended to provide job, wage, and working conditions protections to U.S. workers. They are implemented in both programs through a multifaceted labor certification process that requires prospective H-2A and H-2B employers to conduct recruitment for U.S. workers and offer minimum levels of wages and benefits that vary by program.

H-2A Agricultural Worker Visa

The H-2A visa allows for the temporary admission of foreign workers to the United States to perform agricultural labor or services of a seasonal or temporary nature. It is governed by provisions in the INA and regulations issued by DHS and DOL. H-2A workers may perform agricultural work, as defined by DOL in regulations and including "agricultural labor" and "agriculture" as these terms are defined in specified laws.²⁰ H-2A workers may also perform other specified agricultural activities, including the pressing of apples for cider.²¹

Visa Issuances

The H-2A visa program is not subject to a statutory numerical limit and has grown significantly over the last 30 years. One way to measure the H-2A program's growth is to consider changes in the number of H-2A visas issued annually by DOS. The visa application and issuance process occurs after DOL has granted labor certification and DHS has approved the visa petition (see Figure 1). As illustrated in Figure 2, the number of H-2A visas issued has increased relatively sharply in recent years, with visa issuances more than quadrupling from less than 70,000 in FY2012 to more than 290,000 in FY2022.²²

Annual visa issuances provide an approximation of the number of aliens with H-2A status that enter the United States in a given year. However, they are not a precise measure. Among the reasons for this are that not all aliens who are issued H-2A visas necessarily use them to enter the United States, an alien may be issued a visa in one year and use it to enter the United States in the next year, and an alien with an H-2A visa may be denied admission at a U.S. port of entry.

Figure 2. H-2A Visas Issued, FY1992-FY2022

Source: CRS presentation of data from U.S. Department of State, Bureau of Consular Affairs. Notes: See Appendix C for underlying data.

With the recent growth in H-2A visa issuances, questions have arisen about the size of the H-2A visa program relative to the larger agricultural workforce in the United States. Estimates vary depending on how the agricultural workforce is defined and the factors that are taken into account in making the comparison. According to an analysis by Rural Migration News, a publication of the University of California at Davis, H-2A workers filled "about 125,000 year-round equivalent jobs, 11 percent of the 1.1 million FTE [full-time-equivalent] jobs in U.S. crop agriculture" in FY2021.²³ One basic limitation of using annual visa issuance data as a measure of the H-2A workforce is that these data exclude some H-2A workers, such as those who enter the United States on a visa in one fiscal year and then extend their stay into the next fiscal year to perform new employment; such workers would not be included in visa issuance data for the second year.

H-2A Statutory Provisions

The H-2A visa is subject to a set of conditions and rules described in INA §218.²⁴ As illustrated in Figure 1, prospective H-2A employers must first apply to DOL for labor certification. To approve a labor certification application, DOL must determine that qualified U.S. workers are not available to fill the job openings and that the employment of foreign workers will not adversely affect similarly employed U.S. workers (e.g., by lowering wages).

U.S. worker recruitment is a key component of the H-2A labor certification process. As required by the INA, the prospective H-2A employer's job offer is circulated through an interstate employment system to recruit qualified U.S. workers. The employer also may be required to engage in additional recruitment in a "multi-state region of traditional or expected labor supply."²⁵ INA provisions on the H-2A visa include a fifty percent rule, under which employers are required to hire any qualified U.S. worker who applies for a position during the first half of the work contract under which the H-2A workers who are in the job are employed.²⁶

Under the INA provisions, DOL cannot require a prospective H-2A employer to submit a labor certification application more than 45 days before the employer's date of need for workers. And if the employer has complied with the recruitment and other certification requirements and eligible U.S. workers have not been found to fill the job openings, DOL must issue a labor certification no later than 30 days before the employer's date of need.²⁷ Among the other statutory labor certification requirements, employers must provide workers with housing in accordance with regulations.

The INA permits the filing of H-2A labor certification applications and petitions by agricultural associations.²⁸ In addition, it authorizes DOL to take actions, such as imposing penalties, to ensure employer compliance with the terms and conditions of H-2A employment.

Separate from the INA, H-2A workers are statutorily eligible for legal assistance by a Legal Services Corporation-funded program on matters arising under workers' specific employment contracts relating to wages, housing, transportation, and other employment rights.²⁹

H-2A Regulations

Regulations issued by DHS and DOL implement the INA provisions on the H-2A visa (see Appendix D for additional information on selected H-2A regulations).

DHS Regulations on the H-2A Visa

DHS regulations govern the admission of H-2A workers to the United States.³⁰ A 2008 DHS rule on the H-2A visa, which remains largely in effect, described its purpose as being "to provide agricultural employers with an orderly and timely flow of legal workers, thereby decreasing their reliance on unauthorized workers, while protecting the rights of laborers."³¹

Under DHS regulations, petitioning H-2A employers must establish that the employment for which they are seeking workers is of a temporary or seasonal nature. In general, the regulations consider work to be of a temporary nature when the employer's need for the worker will last no longer than one year.

DHS regulations limit participation in the H-2A program to nationals of countries designated annually by DHS, with the concurrence of DOS.³² The regulations also prohibit payments by prospective H-2A workers to employers, recruiters, or other employment service providers where the payments are a condition of obtaining H-2A employment.

DHS regulations also address an H-2A worker's authorized period of stay. They specify that an H-2A worker can be admitted to the United States up to one week before the start of the approved H-2A petition period in order to travel to the work site and may remain in the country for 30 days after the petition expires in order to prepare to depart or to seek an extension of stay based on a subsequent job offer. An employer can apply to extend an H-2A worker's stay in increments of up to one year, but an alien's total period of stay as an H-2A worker may not exceed three consecutive years. An alien who has spent three years in the United States in H-2A status may not seek an extension of his or her stay or be readmitted to the United States as an H-2A worker until he or she has been outside the country for three months.

Temporary Regulatory Changes

In response to the COVID-19 emergency, DHS issued a final rule on April 20, 2020, making temporary changes (until August 18, 2020) to some of its H-2A regulatory requirements.³³ According to the rule's preamble, "DHS is taking steps to ensure that the agricultural sector has greater certainty and flexibility to minimize gaps in their H-2A workflow" in view of COVID-19-related travel restrictions, visa processing limitations, and possible H-2A worker unavailability due to illness.³⁴ The rule enabled H-2A workers in the United States who sought to undertake new H-2A employment to begin that work after the employer filed a petition, accompanied by a valid labor certification, requesting an extension of stay for the worker (but before the petition was approved). In general, absent this change, the worker could not have started the new employment until DHS approved the petition.³⁵ Under the rule, the H-2A worker could start the new employment on the work start date in the filed petition or the acknowledged petition receipt date, whichever was later, and work for up to 45 days while the petition remained pending.³⁶ DHS issued subsequent rules that extended this change until June 16, 2021.³⁷

As noted, an H-2A worker is limited to a three-year maximum period of stay. DHS's April 2020 rule created a temporary exception to this limitation. Under this exception, an H-2A petition seeking an extension of stay, accompanied by a valid labor certification, could be approved even if any of the workers requested in the petition either had already been in the United States for three years or would exceed the three-year limit if the extension were approved. This exception was in effect until August 18, 2020. Unlike the change described above, it was not extended.

These COVID-19-related rules did not modify or waive related DOL regulations. As stated in the preamble to the April 2020 rule, "This final rule proposes no changes to DOL's regulations or to the TLC [temporary labor certification] process, which the employer must undergo to recruit U.S. workers prior to the filing of an H-2A petition with USCIS."³⁸

DOL Regulations on H-2A Employment

DOL regulations on the H-2A visa include ETA regulations concerning H-2A labor certification.³⁹ ETA regulations implement the requirement that before an employer can petition for H-2A workers, the employer must apply for certification that U.S. workers are not available to fill the positions and that the employment of foreign workers will not adversely affect the wages or working conditions of U.S. workers.

ETA regulations detail the process for prospective H-2A employers to recruit U.S. workers. The employer must submit a job order containing the terms and conditions of employment to the DOL-funded state workforce agency (SWA)⁴⁰ serving the area of intended employment before the employer can submit a labor certification application. The job order becomes the basis for recruiting U.S. workers to fill the employer's openings through an intrastate clearance system. Once the employer submits the labor certification application and job order to ETA and ETA determines that they are complete and comply with applicable requirements, the agency authorizes access to the interstate clearance system and posts the job order on its electronic job registry.⁴¹ ETA also will direct the employer to conduct recruitment by other means, including by contacting former U.S. workers.

H-2A employers must offer and provide required wages and benefits to H-2A workers and workers in corresponding employment. Corresponding employment for purposes of the H-2A program is the employment of non-H-2A workers by an employer who has an approved H-2A labor certification in any work included in the job order or in any agricultural work performed by the H-2A workers. H-2A employers are required to pay workers the highest of several wage rates. Employers must provide a three-fourths guarantee; that is, they must guarantee to offer workers employment for at least three-fourths of the contract period. They must also provide workers with housing, transportation,⁴² and other benefits, including workers' compensation insurance.⁴³

ETA regulations address circumstances in which, due to natural or manmade catastrophic events beyond the employer's control, an H-2A employer no longer needs the services of a worker. In such a case, the employer may terminate the work contract with DOL approval. However, the employer remains obligated to meet certain responsibilities to the worker.⁴⁴

ETA, which is responsible for enforcing H-2A employer compliance with obligations related to the labor certification process, may conduct audits of approved labor certification applications. Under certain circumstances, it may revoke an approved certification or debar an employer from receiving future certifications.

DOL regulations on the H-2A visa also include regulations by the Wage and Hour Division (WHD) concerning enforcement of contractual obligations under the H-2A program.⁴⁵ WHD is responsible for enforcing H-2A employer compliance with obligations to H-2A workers and workers in corresponding employment, such as the requirement to offer employment to U.S. workers. The agency is responsible for carrying out investigations, inspections, and law enforcement functions and in appropriate instances, imposing penalties or taking other actions, including debarment.

Range Herding and Livestock Regulations

ETA issued regulations in 2015 on range herding and livestock production that established special standards and procedures for employers applying for labor certification to hire H-2A workers to perform this type of work. These standards and procedures encompass various aspects of the labor certification process, including job order and labor certification application filing, U.S. worker recruitment, wage requirements, and housing standards.⁴⁶

H-2B Nonagricultural Worker Visa

The H-2B visa provides for the temporary admission of foreign workers to the United States to perform temporary nonagricultural service or labor, if unemployed U.S. workers cannot be found. Foreign medical graduates coming to perform medical services are explicitly excluded.

H-2B workers are not limited to a particular set of occupations. Over the years, the H-2B visa has been used to bring in workers to perform a variety of jobs. According to DOL labor certification data, the top H-2B occupation in recent years in terms of the number of positions certified has been landscaping and groundskeeping worker. Other top occupations include amusement and recreation attendant, forest and conservation worker, maid and housekeeping cleaner, and meat, poultry, and fish cutter and trimmer (see Appendix B for data on H-2B labor certifications by occupation).

Visa Issuances

Figure 3 shows H-2B visa issuance data for FY1992 through FY2022.⁴⁷ Unlike the uncapped H-2A visa, the H-2B visa is subject to a statutory annual numerical limit of 66,000. For several years (FY2005-FY2007, FY2016), a provision was in effect that exempted certain returning H-2B workers from being counted against the cap. During one of these years (FY2007), when demand for H-2B workers was high, H-2B visa issuances topped 129,000, the highest level in the program's history and almost twice the statutory cap. The number of H-2B visas issued reached a recent low point in FY2009 during the Great Recession. FY2009 was the first year since FY2002 that H-2B visa issuances fell below the 66,000 cap. As shown in Figure 3, H-2B visa issuances have followed a generally upward trend since then. For each year since FY2017, Congress has authorized DHS to make additional H-2B visas available (beyond the cap) subject to certain constraints. (For further information about the special H-2B cap provisions, see the "Enacted Provisions" section below.)

As illustrated in Figure 3, there were several years that H-2B visa issuances exceeded the 66,000 cap when no special H-2B cap provisions were in effect. It is not necessarily clear in such cases whether the H-2B cap was technically exceeded (and if so, by how much) in light of the cap implementation process and other factors (see the "Numerical Limits" section below).

Figure 3. H-2B Visas Issued, FY1992-FY2022

Source: CRS presentation of data from U.S. Department of State, Bureau of Consular Affairs. Notes: See Appendix C for underlying data. Special cap-related provisions were in effect for FY2005-FY2007, FY2016-FY2019, and FY2021-FY2022.

H-2B Statutory Provisions

The INA does not include a section detailing the conditions and rules applicable to the admission of H-2B workers as it does for H-2A workers. It does, however, place some specific requirements on H-2B employers. It requires an employer who dismisses an H-2B worker before the end of his or her period of authorized admission to pay for the worker's return transportation abroad.⁴⁸ It also directs DHS to impose a fraud prevention and detection fee on H-2B employers.⁴⁹ The INA further authorizes DHS to enforce the conditions of an H-2B petition and allows DHS to delegate this authority to DOL, by agreement.⁵⁰ (DHS transferred this enforcement authority to DOL, effective January 18, 2009.⁵¹)

The INA also imposes the aforementioned statutory numerical limit on the H-2B visa, specifying that the total number of aliens who may be issued H-2B visas or otherwise provided H-2B status during a fiscal year may not exceed 66,000. It further specifies that no more than half this total (33,000) may be allocated during the first half of a fiscal year.⁵² A statutory provision separate from the INA establishes an H-2B cap-related exception. Enacted as part of the FY2005 Department of Defense Appropriations Act, this provision makes the cap inapplicable on a permanent basis to an H-2B worker employed "as a fish roe processor, a fish roe technician, or a supervisor of fish roe processing."⁵³

Temporary H-2B cap-related and other provisions have also been regularly enacted in recent years. For FY2023, as in past years, language in appropriations legislation provides for the issuance of H-2B visas beyond the statutory cap under certain conditions. Other appropriations provisions address various DOL H-2B regulations. For FY2023, as in past years, these provisions define temporary need and the prevailing wage for H-2B purposes, prohibit the use of funds to enact certain regulatory provisions, and allow for the staggered entry of certain H-2B workers. (These recent, temporary enactments are discussed in the "Enacted Provisions" section below.)

In addition, the FY2008 Consolidated Appropriations Act makes H-2B forestry workers eligible on a permanent basis for the same Legal Services Corporation-funded legal assistance available to H-2A workers. This legal assistance may be provided to H-2B forestry workers on matters relating to wages, housing, transportation, and other employment rights arising under workers' specific employment contracts.⁵⁴

H-2B Regulations

Regulations issued by DHS and DOL implement the INA provisions on the H-2B visa (see Appendix D for additional information on selected H-2B regulations).

DHS Regulations on the H-2B Visa

DHS regulations govern the admission of H-2B workers to the United States.⁵⁵ They define temporary work for purposes of the H-2B visa. For work to qualify as temporary, the employer must establish that his or her need for the worker will end in the "near, definable future." Additionally, the employer's need for the duties to be performed by the worker must be a one-time occurrence, a seasonal need, a peakload need, or an intermittent need.⁵⁶ The employer's need must generally be for a period of one year or less, but, in the case of a one-time occurrence, could last up to three years.

DHS's H-2B regulations limit participation in the H-2B program to nationals of countries designated annually by DHS, with the concurrence of DOS.⁵⁷ These regulations also prohibit payments by prospective H-2B workers to employers, recruiters, or other employment service providers where the payments are a condition of obtaining H-2B employment.

Under DHS regulations, an H-2B worker can be admitted to the United States up to 10 days before the validity period of the H-2B petition and may remain in the country for 10 days after the petition expires. An employer can apply to extend an H-2B worker's stay in increments of up to one year, but an alien's total period of stay as an H-2B worker may not exceed three consecutive years.⁵⁸ An H-2B alien who has spent three years in the United States may not seek an extension of stay or be readmitted to the United States as an H-2B worker until he or she has been outside the country for three months.

As noted above in the discussion of the H-2B statutory provisions, DHS has transferred H-2B enforcement authority to DOL. In accordance with this transfer, DHS regulations provide that

The Secretary of Labor may investigate employers to enforce compliance with the conditions of a petition and Department of Labor-approved temporary labor certification to admit or otherwise provide status to an H-2B worker.⁵⁹

Temporary Regulatory Changes

On May 14, 2020, DHS issued a final rule making temporary changes to some of its H-2B regulatory requirements in response to the COVID-19 public health emergency. This rule mirrored the H-2A rule issued in April 2020 and similarly provided a 120-day filing period for requesting its flexibilities (until September 11, 2020). It, though, did not apply to H-2B workers generally. Instead, it was limited to workers who performed temporary labor "essential to the U.S. food supply chain."⁶⁰ The preamble to the H-2B rule stated that "DHS is taking steps to ensure that employers who have needs for temporary nonagricultural workers who provide stability to the nation's food supply chain have greater certainty and flexibility to minimize gaps in the flow of H-2B workers."⁶¹

The rule enabled such an H-2B worker who was in the United States and sought to undertake new H-2B employment to begin that work after the employer filed a petition requesting an extension of stay for the worker (but before the petition was approved). The petition had to be accompanied by a valid labor certification and an attestation that the worker would be performing work essential to the U.S. food supply chain. In general, absent this change the worker could not have started the new employment until DHS approved the petition.⁶² Under the rule, the H-2B worker was authorized to start the new employment on the work start date in the filed petition or the USCIS-acknowledged petition receipt date, whichever was later, and work for up to 60 days while the petition remained pending.

DHS has reinstituted this flexibility and expanded it to cover H-2B workers generally in a series of temporary rules issued in consultation with DOL since May 2021 (these same temporary rules made additional H-2B visas available, as discussed below).⁶³ Under the most recent of these rules, issued in December 2022, these petition-related provisions are available to H-2B petitioners and H-2B workers until January 24, 2024.⁶⁴

As noted, an H-2B worker is limited to a three-year maximum period of stay. The May 2020 rule created a temporary exception to this limitation. Under the exception, an H-2B petition seeking an extension of stay for H-2B workers essential to the U.S. food supply chain, which was accompanied by a valid labor certification, could be approved even if any of the workers requested in the petition either had already been in the United States for three years or would exceed the three-year limit if the extension were approved. This portion of the rule has not been reinstituted.

DHS/DOL Regulations on H-2B Employment

The 2015 interim final rule on H-2B employment, which includes regulations on H-2B labor certification and enforcement, was issued jointly by DHS and DOL, rather than by DOL alone. This joint issuance came in response to litigation challenging DOL's rulemaking authority with respect to the H-2B program. As noted, the INA does not assign DOL an explicit role in the H-2B visa program. DHS and DOL addressed the joint issuance in the rule's preamble:

To ensure that there can be no question about the authority for and validity of the regulations in this area, DHS and DOL (the Departments), together, are issuing this interim final rule. By proceeding together, the Departments affirm that this rule is fully consistent with the INA and implementing DHS regulations and is vital to DHS's ability to faithfully implement the statutory labor protections attendant to the program.⁶⁵

The regulations on H-2B labor certification establish a two-part labor certification process with distinct registration and application phases.⁶⁶ In the registration phase, DOL must assess an employer's temporary need for H-2B workers. A prospective H-2B employer is required to submit an H-2B registration 120 days to 150 days before the initial date of need for workers and must receive registration approval before filing a labor certification application. A registration approval can be valid for up to three years. (As of the cover date of this report, the registration process is not operational; DOL continues to make determinations about temporary need when it processes labor certification applications.)

Regarding the employer's period of need for workers, the regulations provide that except in cases of a one-time occurrence, labor certification applications with a period of employer need of more than nine months will generally be denied. According to the preamble to the 2015 interim final rule, "Recurring temporary needs of more than 9 months are, as a practical matter, permanent positions for which H–2B labor certification is not appropriate." The preamble also states that "DOL's temporary need period [of nine months] falls comfortably within the parameters of the general 'one year or less' limitation contained in the DHS regulations."⁶⁷ The regulations also limit participation of job contractors in the H-2B program to cases in which they can demonstrate their own temporary need for workers, not that of their employer-clients.⁶⁸

During the labor certification application phase, as detailed in the regulations, ETA determines whether U.S. workers are available to fill the labor needs of the employer. Between 75 and 90 days before the employer's date of need for workers, a prospective H-2B employer must concurrently submit a labor certification application to ETA and a job order to the SWA serving the area of intended employment. If ETA determines that the submissions are complete and comply with applicable requirements, it will direct the SWA to place the job order into intrastate and interstate clearance and will post the job order on its electronic job registry to recruit U.S. workers.⁶⁹ ETA will also direct the employer to conduct recruitment of U.S. workers, including by contacting former U.S. workers. The employer must continue to accept referrals and applications of U.S. applicants until 21 days before the date of need.

A prospective H-2B employer must indicate the starting and ending dates of the period of need for H-2B workers. If within a season an employer has more than one date of need for workers to perform the same job, the employer must file a separate labor certification application for each date of need. The employer is not allowed to stagger the entry of H-2B workers based on one date of need. There is an exception to this staggered entry prohibition that permits an employer in the seafood industry with an approved H-2B petition to bring in the H-2B workers under that petition any time during the 120 days beginning on the employer's starting date of need. In order to bring in the workers between day 90 and day 120, though, the employer must conduct additional U.S. worker recruitment.⁷⁰

The regulations further require that employers offer and provide required wages and benefits to H-2B workers and workers engaged in corresponding employment. Corresponding employment for purposes of the H-2B program is the employment of non-H-2B workers by an employer that has an approved H-2B labor certification when those workers are performing either substantially the same work included in the job order or substantially the same work performed by the H-2B workers, with exceptions for certain incumbent workers.⁷¹ H-2B employers are required to pay workers the highest of the prevailing wage rate or the federal, state, or local minimum wage.⁷² They must offer a three-fourths guarantee (similar to that under the H-2A program) that ensures payment of wages for at least three-fourths of the contract period.⁷³ Among other benefits, they must pay or reimburse workers for transportation costs (beyond the statutory requirements concerning early dismissal of workers) and visa costs.⁷⁴

As under the H-2A visa program, the regulations address emergency circumstances in which, due to natural or manmade catastrophic events beyond the employer's control, an H-2B employer no longer needs the services of a worker. In such cases, the employer may terminate the job order with DOL approval. However, the employer remains obligated to meet certain responsibilities toward the worker.⁷⁵

Also, as under the H-2A program, ETA enforces H-2B employer compliance with obligations related to the labor certification process. It may conduct audits of adjudicated labor certification applications. Under certain circumstances, it may revoke an approved certification or debar an employer from receiving future certifications.

WHD also has enforcement responsibility under the H-2B visa program, which is detailed in regulations.⁷⁶ It enforces the rights of H-2B workers and workers in corresponding employment and the employer's obligations to H-2B and U.S. workers, such as whether employment was offered to U.S. workers. WHD is responsible for carrying out investigations, inspections, and law enforcement functions as well as, in appropriate instances, imposing penalties or taking other actions, including debarment.

Legislative Activity

Since the 1990s, Members of Congress have put forward a variety of legislative proposals concerning foreign temporary agricultural and nonagricultural workers. Some of these proposals have been introduced in Congress as stand-alone bills, while others have been part of larger immigration or other measures. While most have seen no legislative action, a number of guest worker-related provisions and bills have been considered and, in some cases, enacted into law.

Major guest worker reform legislation was considered in the 113^th Congress. The Senate passed a comprehensive immigration reform bill that would have established new temporary agricultural and nonagricultural worker visas, reformed the H-2B visa, and phased out the H-2A visa.⁷⁷ In addition, the House Judiciary Committee reported a bill in the 113^th Congress to establish a new H-2C agricultural worker visa to replace the H-2A visa.⁷⁸

While some Members continued to put forward legislation to establish new temporary worker visas for agricultural and nonagricultural workers in the following years,⁷⁹ guest worker bills introduced in more recent years have typically proposed changes to the existing visa programs. For example, recent bills on the H-2B visa have focused largely on the statutory annual cap. They include proposals to establish a permanent exemption from the H-2B cap for H-2B returning workers and to create new exemptions from the cap for H-2B workers performing certain types of work.⁸⁰

Bills on the H-2A visa introduced in recent Congresses would variously change existing H-2A requirements concerning temporary need, wages, U.S. worker recruitment, and housing, among other items.⁸¹ One such bill—the Farm Workforce Modernization Act (H.R. 1603)—passed the House in the 117^th Congress. This bill would have made significant changes to the H-2A visa. With respect to required wages, it would have revised the methodology for calculating and adjusting one of the applicable wage rates, the adverse effect wage rate. It would have established a six-year Portable H–2A Visa Pilot Program to enable a limited number of H-2A workers to perform agricultural labor for employers who would not need to file H-2A petitions. It would also have allowed DHS to approve petitions for H-2A workers to perform year-round agricultural work, subject to an initial annual numerical limitation of 20,000 (see the "Temporary or Seasonal Nature of Work" section for related discussion).⁸²

Enacted Provisions Since 2015

Since the 114^th Congress, temporary provisions on the H-2B visa have been regularly enacted as part of appropriations measures. One set of such provisions concerns certain H-2B regulations related to DOL labor certification. Language included in DOL appropriations acts for each year from FY2016 to FY2023 addresses the H-2B prevailing wage, requires use of the DHS regulatory definition of H-2B temporary need (i.e., one year or less), and prohibits the use of funds to enforce the definition of corresponding employment and the three-quarters guarantee rule.⁸³ In addition, DOL appropriations acts for each year from FY2015 to F2023 include "staggered entry" provisions that give employers in the seafood industry with approved H-2B petitions additional time (beyond the approved start date) to bring in workers (see the "DHS/DOL Regulations on H-2B Employment" section).⁸⁴

A second set of temporary provisions enacted in appropriations legislation concerns the H-2B statutory cap. H-2B cap relief has taken two different forms in recent years. For FY2016, Congress enacted an H-2B returning worker exemption.⁸⁵ Since FY2017, Congress has enacted a different type of H-2B cap-related provision. These more recent provisions have authorized DHS, after consultation with DOL, to make additional H-2B visas (beyond the 66,000 cap) available in a fiscal year, subject to certain constraints, upon a determination that the needs of American businesses cannot be satisfied with available U.S. workers.⁸⁶ Joint DHS/DOL rules implementing these provisions have made additional H-2B visas available for each year from FY2017 to FY2023, except FY2020.⁸⁷

Policy Considerations

Guest worker programs generally try to achieve two goals simultaneously: to be responsive to legitimate employer needs for temporary labor and to provide adequate protections for U.S. and foreign temporary workers. DOL explicitly addressed the idea of balancing the needs of employers and workers in the supplementary information accompanying a 2011 proposed rule on the H-2B visa:

Although the Department still seeks to maintain an efficient system, it has in this new rule struck a balance between reducing processing times and protecting U.S. worker access to these job opportunities.⁸⁸

The balancing of broad guest worker program goals is reflected, in practice, in the particular provisions that H-2A and H-2B proposals include on a range of component policy considerations, such as program administration, the labor market test, and wages, among others.

Program Administration

Under the H-2A and H-2B programs, DOL makes determinations on labor certification applications, and DHS adjudicates nonimmigrant visa petitions (see Figure 1). Under the INA, as explained, prospective H-2A employers must apply to DOL for labor certification. The INA does not require DOL labor certification for the H-2B visa. Rather, it makes general reference to "consultation with appropriate agencies of the Government" as part of the process of adjudicating petitions for "H" and other specified nonimmigrants.⁸⁹ The requirement for H-2B labor certification by DOL is established by regulation. The preamble to the 2015 DHS/DOL interim final rule on H-2B employment includes the following rationale for DOL's labor certification role:

DOL is the appropriate government agency with expertise in labor questions and historic and specific expertise in addressing labor protection questions related to the H–2B program. This advice helps DHS fulfill its statutory duty to determine, prior to approving an H–2B petition, that unemployed U.S. workers capable of performing the relevant service or labor cannot be found in the United States.⁹⁰

Over the years, regulatory and legislative proposals have sought to establish new agency roles in administering guest worker programs. For example, H-2B rules proposed in 2005 by DHS and DOL would have eliminated DOL's labor certification role in the interest of efficiency. Under this proposal, which was ultimately withdrawn in the face of opposition, employers would have applied directly to DHS for H-2B workers and would have included certain labor attestations. With respect to the H-2A program, some legislative reform measures have proposed reassigning DOL's administrative responsibilities to the U.S. Department of Agriculture (USDA).⁹¹

Labor Market Test

Fundamental questions about any guest worker program include if and how it tests the labor market to determine whether U.S. workers are available for the job opportunities in question. Under both the H-2A and H-2B programs, employers interested in hiring foreign workers must first go through the process of labor certification. Intended to protect job opportunities for U.S. workers, labor certification entails a determination by DOL about whether qualified U.S. workers are available to perform the needed work and whether the hiring of foreign workers will adversely affect the wages and working conditions of similarly employed U.S. workers. Recruitment is the primary method used to determine U.S. worker availability. While there is widespread agreement on the goals of labor certification, the process itself has been variously criticized for being cumbersome, slow, expensive, and ineffective in protecting U.S. workers.

The nature of the labor market test was a key issue in the DOL H-2A and H-2B rules issued by the George W. Bush Administration in 2008. The 2008 DOL rules for both programs changed the traditionally supervised labor certification process into an attestation-based certification process (see Appendix D). In the preamble to its 2008 proposed H-2A rule, DOL cited criticism of the labor certification process as "complicated, time-consuming, and requiring the considerable expenditure of resources by employers." It further stated that its proposals "to re-engineer the H–2A program processing" will "simplify the process by which employers obtain a labor certification while maintaining, and even enhancing, the Department's substantial role in ensuring that U.S. workers have access to agricultural job opportunities."⁹²

Current regulations on H-2A and H-2B employment incorporate a supervised, certification-based model of labor certification (see the "DOL Regulations on H-2A Employment" and "DHS/DOL Regulations on H-2B Employment" sections above). A main argument made in support of this change concerned the need to restore protections for U.S. and foreign workers. For example, a 2011 DOL proposed H-2B rule stated

[T]here are insufficient worker protections in the current attestation-based model in which employers merely assert, and do not demonstrate, that they have performed an adequate test of the U.S. labor market and one which is in accordance with the regulations.⁹³

Wages

Wage requirements have been a key area of contention about the H-2A and H-2B programs. To prevent adverse effects on similarly employed U.S. workers, the H-2A and H-2B programs require employers to offer wages at or above specified levels. The particular wage requirements, which vary by program, are in regulation.⁹⁴ Under the H-2A program, employers must pay their workers the highest of the federal or applicable state minimum wage rate, the applicable prevailing wage rate,⁹⁵ the adverse effect wage rate (AEWR), or the agreed-upon collective bargaining wage rate. Under the H-2B program, employers must pay their workers the highest of the federal, state, or local minimum wage or the prevailing wage rate.

Policy differences about H-2A wage requirements have centered on the AEWR, which historically has often been the highest of the required wage rates. The H-2A visa is the only nonimmigrant visa subject to this wage rate. For H-2A workers engaged in non-range occupations, the applicable AEWR is a state-level, hourly rate that is set annually and is based on labor force survey data.⁹⁶ Farm labor advocates have argued that the AEWR is necessary to protect U.S. agricultural workers from a possible depression of wages resulting from the hiring of foreign workers. Employers have long maintained that the AEWR results in inflated wage rates.

Legislative proposals over the years to reform the H-2A program or establish new agricultural guest worker programs have often included provisions to freeze, eliminate, or effectively redefine the AEWR.⁹⁷ In the 117^th Congress, House-passed H.R. 1603 proposed to calculate separate AEWRs for individual occupational classifications, preferably by state or region if such data were reported. The bill also included provisions to limit annual AEWR increases and decreases. A fact sheet on H.R. 1603, prepared by the bill's sponsor, stated that the bill "reforms H-2A wages to better reflect real-world wages, while protecting against sudden wage increases that disrupt employer planning and operations."⁹⁸ A sponsor-prepared fact sheet on a similar predecessor bill passed by the House in the 116^th Congress also stated, "Some workers would see higher wages (machine operators), while others would see lower wages (crop workers)."⁹⁹

Regarding H-2B wage requirements, provisions included in annual DOL appropriations acts since FY2016 mandate that the prevailing wage for H-2B purposes be the greater of the actual wage paid by the employer to other employees with similar experience and qualifications for the position in the same location, or the prevailing wage level for the occupational classification in the applicable geographic area. The appropriations language further requires DOL to accept a private wage survey for determining the prevailing wage unless "the methodology and data in the provided survey are not statistically supported" (see the "Enacted Provisions" section for statutory citations).

Temporary or Seasonal Nature of Work

The H-2A and H-2B programs are, by definition, limited to temporary or seasonal work.¹⁰⁰ They are intended to meet employers' temporary—and not permanent—needs for labor when U.S. workers cannot be found.

This "temporary or seasonal" requirement places restrictions on both programs. With respect to the H-2A program, it means that the program cannot be used to meet employers' year-round agricultural labor needs absent a statutory change. There is a long-standing exception to this year-round restriction for herding on the range.¹⁰¹ Legislation in recent Congresses has sought to include dairy industry activities—most of which are excluded from the H-2A program as being year-round—in the H-2A program by amending INA provisions on the H-2A visa.¹⁰² Other legislative proposals would more broadly amend the statutory definition of the H-2A visa to eliminate the requirement that H-2A nonimmigrants perform work "of a temporary or seasonal nature."¹⁰³ H.R. 1603, as passed by the House in the 117^th Congress, proposed a more incremental approach. It would have permitted a limited number of H-2A workers (initially capped at 20,000 per year) to perform year-round employment, with a set aside for dairy work.

Numerical Limits

A numerical cap provides a means, separate from program requirements, of limiting the number of foreign workers who can be admitted annually in a visa category. The H-2A visa is not numerically limited. The H-2B program, by contrast, is statutorily capped at 66,000 annually. Certain H-2B petitions are exempt from the cap, such as petitions filed for current H-2B workers who are seeking an extension of stay and petitions filed for fish roe workers and supervisors.¹⁰⁴

Annual numerical limitations on the H-2B visa and other capped temporary worker visas are implemented by DHS at the petition stage. Under DHS regulations

When calculating the numerical limitations ... for a given fiscal year, USCIS will make numbers available to petitions in the order in which the petitions are filed. USCIS will make projections of the number of petitions necessary to achieve the numerical limit of approvals, taking into account historical data related to approvals, denials, revocations, and other relevant factors. USCIS will monitor the number of petitions (including the number of beneficiaries requested when necessary) received and will notify the public of the date that USCIS has received the necessary number of petitions (the "final receipt date").¹⁰⁵

In other words, in a given fiscal year USCIS accepts the number of petitions it estimates will result in the appropriate number of foreign workers receiving a visa or otherwise obtaining status under a particular temporary worker visa program. USCIS has described the inherent challenges in this system in connection with the H-2B visa.

It can be difficult to estimate in advance how many beneficiaries of an H-2B petition approved by USCIS will actually seek H-2B status or eventually be issued an H-2B visa by the Department of State (DOS).¹⁰⁶

If USCIS accepts more petitions than necessary, the H-2B cap can be exceeded. In at least one year (FY2015), however, USCIS initially accepted too few petitions and had to briefly reopen the window for accepting cap-subject H-2B petitions.¹⁰⁷

In years when the demand for H-2B visas exceeds the supply, there is pressure to admit additional H-2B workers. Temporary statutory provisions have been enacted to allow for the admission of additional H-2B workers (beyond the 66,000 cap) every year since FY2016 (see the "Enacted Provisions" section above). These provisions permit the admission of increased numbers of H-2B workers, while leaving the statutory annual 66,000 limit in place. Legislation has been introduced in recent Congress to increase the statutory cap and establish permanent H-2B cap exemptions.¹⁰⁸

Ability of Workers to Change Employers

Under the H-2A and H-2B programs, a U.S. employer, after receiving labor certification from DOL, may petition DHS to employ a foreign worker to do a particular job for a period of time. Absent any special circumstances, at the conclusion of the work period, the H-2A or H-2B worker is permitted to stay in the United States for an additional 30 days or 10 days, respectively, during which he or she can look for another job with an H-2A or H-2B-certified employer (who would then petition for the worker). The fact that the employee is tied to his or her petitioning employer has been a longtime concern of labor advocates, who have called for greater portability in the H-2A and H-2B programs.¹⁰⁹

H.R. 1603, as passed by the House in the 117^th Congress, would have directed DHS to establish a "portable H-2A visa pilot program," which would have run for six years. To be eligible for portable H-2A status, workers would have had to previously been granted and maintained H-2A status during their period of admission. Participating agricultural employers, who would have been required to complete a registration process, could have employed workers with portable H-2A status without filing a petition. Employment could have been terminated by the worker or the employer at any time. After ending employment, a portable H-2A worker would have had 60 days to find employment with another registered employer or leave the country. The program would have been limited to 10,000 portable H-2A workers at any one time.

Treatment of Family Members

The INA allows for the admission to the United States of the spouses and minor children of foreign workers on H-2A, H-2B, and other "H" visas who are accompanying or following to join the worker. These family members are issued H-4 visas and do not count against the numerical cap, if any, on the relevant temporary worker visa (such as the H-2B visa). Allowing for the admission of guest workers' spouses and minor children may enable families to stay together. On the other hand, this practice has been faulted for decreasing incentives for guest workers to return home after their authorized period of stay. Some past legislative proposals to establish new guest worker programs would have explicitly prohibited family members from accompanying or following to join principal aliens.¹¹⁰

Enforcement

Another set of considerations relates to enforcement of the terms of guest worker programs. With respect to the H-2A program, the INA broadly authorizes the Secretary of Labor to

take such actions, including imposing appropriate penalties and seeking appropriate injunctive relief and specific performance of contractual obligations, as may be necessary to assure employer compliance with terms and conditions of employment.¹¹¹

More limited language added to the INA in 2005 applies to the H-2B program. These provisions authorize the Secretary of Homeland Security to impose administrative remedies and to deny certain petitions filed by an employer if the Secretary finds "a substantial failure to meet any of the conditions of the [H-2B] petition" or "a willful misrepresentation of a material fact in such petition."¹¹² As discussed, the Secretary of Homeland Security has delegated this enforcement authority to the Secretary of Labor in accordance with an agreement between the two agencies. The Secretary of Labor subsequently delegated this authority to WHD, which is now responsible for assuring employer compliance with the terms and conditions of H-2B employment.¹¹³

Another enforcement-related question concerns what type of mechanism, if any, ensures that guest workers do not remain in the United States beyond their authorized period of stay and become part of the unauthorized population. Among the related regulatory provisions currently in effect are provisions establishing notification requirements for H-2A and H-2B employers. DHS regulations on the H-2A visa and the H-2B visa require petitioners to notify DHS within two work days when an H-2A or H-2B worker fails to report at the start of the employment period, absconds¹¹⁴ from the worksite, or is terminated prior to completion of the work, or when the work for which H-2A or H-2B workers were hired is completed early.¹¹⁵ In the case of the H-2B visa, DHS explained the purpose of these notification requirements as enabling the agency

to keep track of H–2B workers while they are in the United States and take appropriate enforcement action where DHS determines that the H–2B workers have violated the terms and conditions of their nonimmigrant stay.¹¹⁶

Other suggestions that have been offered to help ensure that temporary workers depart at the end of their authorized period of stay include involving the workers' home countries in guest worker programs. Another idea is to create an incentive for foreign workers to leave the United States at the appropriate time by, for example, withholding earnings or otherwise setting aside a sum of money for each worker that would only become available once the worker returned home.¹¹⁷

Unauthorized Workers

The H-2A and H-2B visa programs account for a fraction of all the workers in the United States performing the type of agricultural and nonagricultural work covered by these visas. Unauthorized workers comprise a sizeable percentage of workers in some related industries and occupations. For example, according to an analysis of 2017 and 2018 American Community Survey data by the Center for American Progress, unauthorized workers represented about a quarter of workers in the farming, fishing, and forestry occupational group and about 23% and 21%, respectively, of construction laborers and landscaping and groundskeeping workers.¹¹⁸

Policymakers have periodically considered establishing a statutory mechanism to grant permanent immigration status to unauthorized or authorized guest workers. Historically, these discussions have focused on agricultural workers, and in some past and present legislative measures, guest worker reform provisions have been paired with programs to grant permanent immigration status. For example, along with its agricultural guest worker provisions, the comprehensive immigration reform bill passed by the Senate in 2013 proposed a two-stage agricultural worker legalization program, through which farm workers who had performed a requisite amount of agricultural work and satisfied other requirements could have obtained legal temporary resident status (termed "blue card" status). After meeting additional agricultural work and other requirements, these workers could have applied for lawful permanent resident (LPR) status. (Unauthorized workers and H-2A workers would have been eligible for this program.)¹¹⁹

More recently, in the 117^th Congress, House-passed H.R. 1603 would have established a two-stage legalization program for unauthorized agricultural workers to first obtain legal temporary certified agricultural worker (CAW) status and then LPR status, subject to work and other requirements at each stage. Alternatively, H.R. 1603 would have permitted workers to remain in CAW status indefinitely (without ever applying for LPR status) provided they continued to perform a requisite amount of agricultural work annually. This "indefinite temporary status" option distinguished H.R. 1603 from the 2013 Senate bill and other past agricultural legalization measures, which treated the legal temporary status as a way station to LPR status and limited how long an individual could remain in that temporary status. In addition, H.R. 1603 included provisions not in earlier agricultural legalization measures to enable an H-2A worker who had performed a threshold amount of H-2A work in each of 10 years to self-petition for LPR status.¹²⁰

Conclusion

Many policymakers assert that the H-2A and H-2B visa programs are not adequately meeting employers' labor needs and/or are not adequately protecting U.S. and foreign workers, although their particular criticisms vary widely. In past years, proposed solutions have taken the form of reforms to the H-2A and H-2B visas as well as new guest worker visa programs. In the current climate, pursuing reforms to existing visa programs seems to be the course more policymakers are likely to follow.

Appendix A. H-2A and H-2B Certifications by State

Appendix B. H-2B Certifications by Occupation

In FY2022, DOL approved 11,567 H-2B labor certification applications. As part of these applications, DOL approved 211,254 requests for H-2B positions.

Typically, a majority of H-2B requests certified by DOL are for workers in a few occupations. In FY2022, as shown in Table B-1, 74% of certified positions were in 10 occupations. One occupation, landscaping & groundskeeping worker, accounted for 37% of the total number of H-2B positions certified.

Appendix C. H-2A and H-2B Visa Issuances

Appendix D. Supplementary Information on H-2A and H-2B Regulations

H-2A Rules

The H-2A visa program is governed mainly by a DHS final rule issued in 2008¹²¹ and a DOL final rule issued in 2022.¹²² In addition, DOL issued a final rule in 2023 concerning H-2A wage requirements.¹²³ (For a discussion of temporary rules on H-2A visas related to the COVID-19 emergency, see the "DHS Regulations on the H-2A Visa" section.)

Background

In 2008, during the George W. Bush Administration, DHS and DOL published final rules to significantly amend their respective H-2A regulations.¹²⁴ The agencies issued these rules to streamline the H-2A program in the aftermath of unsuccessful congressional efforts to enact comprehensive immigration reform legislation with guest worker provisions.

The DOL rule was controversial. Prior to its issuance, the H-2A labor certification process had been a fully supervised certification-based process, in which federal or state officials reviewed an employer's actual efforts or documentation to ensure compliance with program requirements. The 2008 rule replaced this supervised process with an attestation-based process, in which prospective H-2A employers had to attest in their applications, under threat of penalties, that they complied with H-2A program requirements.

Under the Obama Administration, the 2008 DHS rule was retained, but the 2008 DOL rule was replaced with a new H-2A final rule issued in 2010.¹²⁵ In the preamble to the proposed version of this replacement rule, DOL cited concerns about employer noncompliance with program requirements under the 2008 rule. It explained the need for new rulemaking, in part, as follows

The Department, upon due consideration, believes that the policy underpinnings of the 2008 Final Rule, e.g. streamlining the H–2A regulatory process to defer many determinations of program compliance until after an Application has been fully adjudicated, do not provide an adequate level of protection for either U.S. or foreign workers.¹²⁶

The 2010 DOL H-2A final rule reversed changes made by the 2008 rule to the H-2A labor certification process and reestablished the type of compliance-demonstration process that had been in effect prior to the 2008 rule.

2019 DOL Final and Proposed Rules

In 2019, during the Trump Administration, DOL issued a final H-2A rule that made a few changes to the labor certification process.¹²⁷ The rule eliminated a regulatory requirement that a prospective H-2A employer advertise its job opportunity in a print newspaper as part of its required recruitment activities. It also added a new regulatory provision allowing the ETA officer making a determination on an H-2A labor certification application, where appropriate, to direct the SWA to notify organizations that provide employment and training services about the job opportunity. In addition, under the rule, DOL enhanced the publicly available electronic job registry (https://seasonaljobs.dol.gov/jobs) where it posts approved H-2A job orders to recruit U.S. workers.¹²⁸

Another 2019 DOL proposed rule would have made more fundamental changes to the H-2A program.¹²⁹ It would have amended ETA regulations on the labor certification process and WHD regulations on the enforcement of H-2A employers' contractual obligations. Among the major regulatory changes included in the rule, DOL proposed to expand the definition of agriculture for H-2A purposes to encompass reforestation and pine straw activities, and to replace the existing fifty percent rule with a new 30-day rule (see the "H-2A Statutory Provisions" section). In the preamble to its 2022 H-2A final rule, as published in the Federal Register, DOL under the Biden Administration described the relationship between its rule and the 2019 proposed rule, as follows: "After careful consideration of the public comments received, this final rule adopts much of the regulatory text proposed in the [2019 proposed rule] with some significant changes."¹³⁰

The 2019 proposed rule also would have revised the methodologies used to determine two wage rates relevant to the H-2A program: the AEWR and the prevailing wage rate. The AEWR methodology was not addressed in the 2022 final rule. DOL ultimately issued an H-2A wage rule in 2023 that revised the methodology for making AEWR determinations for non-range occupations.¹³¹

H-2B Rules

The H-2B visa program is governed mainly by a DHS final rule issued in 2008¹³² and a DHS/DOL interim final rule issued in 2015.¹³³ A DHS/DOL rule issued in 2019 made some changes to the H-2B labor certification process.¹³⁴ In addition, a DHS/DOL final rule issued in 2015 revised the methodology for calculating prevailing wage rates under the H-2B program.¹³⁵ (For a discussion of temporary rules on H-2B visas related to the COVID-19 emergency, see the "DHS Regulations on the H-2B Visa" section.)

Background

Mirroring regulatory actions taken on the H-2A program, DHS and DOL under the George W. Bush Administration published final rules to significantly amend their respective H-2B regulations in 2008. Under the DOL H-2B rule, which streamlined the labor certification process, determinations about H-2B program compliance were made only after a labor certification application had been adjudicated.

The Obama Administration retained the DHS H-2B rule but wanted to replace the DOL rule. To that end, DOL published a new H-2B proposed rule in 2011. In this proposed rulemaking, DOL took the position that the 2008 rule did not provide sufficient protections for U.S. or foreign workers. It further described problems of noncompliance

[I]n the first year of the operation of the attestation-based system our experience indicates that employers are attesting to compliance with program obligations with which they have not complied, and that employers do not appear to be recruiting, hiring and paying U.S. workers, and in some cases the H-2B workers themselves, in accordance with established program requirements.¹³⁶

DOL issued an H-2B final rule in 2012 that required employers to show compliance with recruitment and other requirements in advance of DOL making a determination on the labor certification application.¹³⁷ This rule, however, never became operative due to court action. A key issue in the litigation was whether DOL had the authority to promulgate regulations for the H-2B program (see the "DHS/DOL Regulations on H-2B Employment" section). In April 2015, DOL and DHS jointly issued two H-2B rules: an interim final rule on H-2B employment that was "virtually identical" to the DOL 2012 final rule,¹³⁸ and a companion final rule on prevailing wage rates under the H-2B program.

2019 DOL Final Rule

A 2019 DHS/DOL H-2B final rule made changes to the H-2B labor certification process that were analogous to some of the changes the 2019 DOL H-2A final rule made to the H-2A certification process.¹³⁹ Like the H-2A rule, the 2019 H-2B rule eliminated a regulatory requirement that a prospective H-2A employer advertise its job opportunity in a print newspaper. DOL also indicated that it would post H-2B job opportunities on the same expanded electronic job registry used to advertise H-2A jobs, as discussed above.