Warner, Kaine Urge Biden Administration to Ensure Virginia Seafood Processors Receive Necessary Visas

WASHINGTON, D.C. – U.S. Sens. Mark R. Warner and Tim Kaine (both D-VA) joined U.S. Sens. Mike Rounds (R-SD) and Angus King (I-ME) in urging the Department of Homeland Security (DHS) to work with the Department of Labor (DOL) to quickly make available an additional 44,716 H-2B visas, the maximum number of Congressionally-authorized visas in order to ensure that seafood processors and other businesses in Virginia have the workforce they need ahead of the seasonal start date on April 1.

“American businesses from industries such as tourism and hospitality, landscaping, fairs and carnivals, seafood processing, golf courses, reforestation, contractors and horse racing depend on seasonal employment to meet the demand across many industries,” the senators wrote. “Without meaningful H-2B cap relief, many seasonal businesses will be forced to scale back operations, cancel or default on contracts, lay off full-time U.S. workers and, in some cases, close operations completely. By taking action to release and process additional H-2B visas, seasonal businesses and U.S. workers across the country will avoid these harmful consequences and instead help contribute to the American economy.”

“Given the growing demand for H-2B workers as our economy continues to reopen and employers continue to struggle with staffing shortages, we urge DHS to promptly make available all 64,716 additional H-2B visas authorized under law and urge DOL to allow employers to utilize emergency procedures for their applications to expedite processing times,” they continued. “These vital American businesses depend on access to a sufficient number of seasonal H-2B workers on April 1.”

The H-2B Temporary Non-Agricultural Visa Program allows U.S. employers to hire seasonal, non-immigrant workers during peak seasons to supplement the existing American workforce. In order to be eligible for the program, employers are required to declare that there are not enough U.S. workers available to do the temporary work, as is the case with the seafood industry, which relies on H-2B workers for tough jobs such as shucking oysters and processing crabs. 

Along with Sens. Warner, Kaine, Rounds, and King the letter was signed by Sens. Lindsey Graham (R-SC), Chris Coons (D-DE), Jim Risch (R-ID), Michael Bennet (D-CO), Lisa Murkowski (R-AK), Bob Menendez (D-NJ), Rob Portman (R-OH), Jeanne Shaheen (D-NH), Roy Blunt (R-MO), Rev. Raphael Warnock (D-GA), Cynthia Lummis (R-WY), Tom Carper (D-DE), John Cornyn (R-TX), Joe Manchin (D-WV), Mike Crapo (R-ID), John Thune (R-SD), John Hickenlooper (D-CO), Susan Collins (R-ME), Pat Toomey (R-PA), Tina Smith (D-MN), Kevin Cramer (R-ND), Amy Klobuchar (D-MN), Roger Wicker (R-MS), Kyrsten Sinema (D-AZ), Jerry Moran (R-KS), Ron Wyden (D-OR), Rand Paul (R-KY), Mark Kelly (D-AZ), John Barasso (R-WY), Dianne Feinstein (D-CA), and Tim Scott (R-SC).    

Sens. Warner and Kaine have long advocated for the seafood processing industry – a community largely made up of rural, family-owned operations. Last year, the Senators urged the U.S. Department of Homeland Security (DHS) to release additional H-2B visas needed to support local seafood businesses in Virginia and Maryland. In December 2021, Sen. Warner applauded the release of an additional 20,000 H-2B visas for seasonal workers.

Sens. Warner and Kaine are committed to providing long-term relief for seasonal seafood processors through reform of the H-2B program. The release of these additional visas is an important step in ensuring that seafood processors in Virginia are able to meet their staffing needs in the upcoming season.

A copy of the letter is available here and below.

Dear Secretary Mayorkas and Secretary Walsh:

We write on behalf of seasonal businesses in our states to urge you to provide expeditious H-2B cap relief to address the seasonal labor shortages caused by the inadequate H-2B visa cap. Specifically, we urge that the Department of Homeland Security (DHS), in consultation with the Department of Labor (DOL), utilize the authority provided by Congress to release the maximum allowable number of additional H-2B visas for Fiscal Year 2022 (FY22).  We further request that your agencies take steps to process pending H-2B applications in advance of the start of the April 1 hiring period for the second half of FY22, including by instituting emergency procedures previously used by DOL to address labor certification processing delays. 

American businesses from industries such as tourism and hospitality, landscaping, fairs and carnivals, seafood processing, golf courses, reforestation, contractors and horse racing depend on seasonal employment to meet the demand across many industries. Without meaningful H-2B cap relief, many seasonal businesses will be forced to scale back operations, cancel or default on contracts, lay off full-time U.S. workers and, in some cases, close operations completely. By taking action to release and process additional H-2B visas, seasonal businesses and U.S. workers across the country will avoid these harmful consequences and instead help contribute to the American economy.

As Congress has allowed in each of the past five fiscal years, the current FY22 Continuing Resolution continues to provide the Department of Homeland Security the authority to lift the existing annual 66,000 H-2B visa cap.  In the past year, DHS has provided supplemental cap relief in the amounts of 22,000 in May 2021 and 20,000 in January 2022. While these supplemental visas helped some employers, they were not sufficient to satisfy the total need for H-2B workers. Additionally, the release of these visas did not occur until well into many businesses’ peak seasons, which caused significant harm to these employers.

We urge you to release all allowable additional visas as soon as possible to make certain workers can begin working on April 1, 2022, the start date for the second half of FY22. According to your Departments’ January 28, 2022 temporary final rule titled “Exercise of Time-Limited Authority to Increase the Fiscal Year 2022 Numerical Limitation for the H-2B Temporary Nonagricultural Worker Program and Portability Flexibility for H-2B Workers Seeking To Change Employers,” DHS is authorized to release a total of 64,716 additional visas this fiscal year.

As you know, the first half H-2B visa cap for FY22 was reached on September 30, 2021, almost two months earlier than previous years. The urgency and high level of need for nonagricultural worker visas prompted your agencies to announce, for the first time ever, the release of an additional 20,000 H-2B visas in the first half of the fiscal year. This leaves tens of thousands of additionally authorized visas available for the remainder of FY22. 

As a result, we encourage you to release and process the authorized 44,716 additional visas in a manner that will make certain all H-2B workers can begin work on the April 1, 2022 start date for the second half of FY22. These additional visas are imperative, as evidenced by the Office of Foreign Labor Certification announcement that between January 1-3, 2022, the Foreign Labor Application Gateway System for the peak filing season received 7,875 applications from employers for more than 136,555 worker positions with an April 1, 2022 or later work start date. This is more than quadruple the number of H-2B visas currently available for the second half of the fiscal year.

In a December 20, 2021 press release, DHS outlined the agency’s intention to “implement policies that will make the H-2B program even more responsive to the needs of our economy.” It is clear from the number of applications received during the filing period for the second half of FY22 that the release of the remaining H-2B worker visas would be responsive to the needs of our economy.

We are also concerned that the unprecedented demand for the program has led to delays in processing labor certifications at DOL that, without emergency procedures, will prevent employers from completing the H-2B application process before the April 1, 2022 start date for the second half of FY22. In the second half of FY21, employers assigned to the final review group did not receive a first action from DOL until late February and a labor certification until March. This year, DOL is already running a week behind compared to last year, with a larger group of total applications to process. At this rate, it appears DOL may not finish processing labor certifications for the final review group until late March, making it impossible for employers to complete the full H-2B process before April 1. In 2016, due to similar processing delays, DOL instituted emergency procedures to allow employers to begin U.S. worker recruitment prior to receiving their first actions from DOL. We request that DOL again institute these emergency procedures, which will allow employers to submit their recruitment reports immediately upon receiving a Notice of Acceptance from DOL, saving two weeks.

Given the growing demand for H-2B workers as our economy continues to reopen and employers continue to struggle with staffing shortages, we urge DHS to promptly make available all 64,716 additional H-2B visas authorized under law and urge DOL to allow employers to utilize emergency procedures for their applications to expedite processing times. These vital American businesses depend on access to a sufficient number of seasonal H-2B workers on April 1. We thank you in advance for your attention to this pressing matter.

Sincerely,

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