Seasonal H2B workers are critical to your workforce. Navigating complex and ever-changing regulations is challenging. Significant changes have already occurred this year, and you must stay updated.
On January 16, 2025, the National Association of Landscape Professionals held a virtual H-2B Town Hall meeting to provide critical updates about changes to the H2B Visa process. We’ve recapped the meeting here, highlighting how changes will affect your business this year.
Visas Cap Reached for April 1—What Are Your Options Now?
On January 7, 2025, USCIS announced they have received enough petitions for H2B returning workers with start dates on or before March 31 to close the application process for that period. Requests submitted after that date will be rejected, and any fees will be returned to you.
So, what happens if your request wasn’t approved?
- A small pool of 5,000 returning worker visas for a May 15 or later start date is available. This may be an option to consider. Another is to apply for the Northern Central American (NCA) supplemental visas.
- October Refiling: Businesses can withdraw spring applications and reapply in the fall to potentially secure cap-exempt status for future applications.
Legal Changes
The Federation of Employers and Workers of America (FEWA), National Association of Landscape Professionals (NALP), National Council of Agriculture Employers (NCAE), Outdoor Amusement Business of America (OABA) and the Seasonal Employment Alliance (SEA) filed a lawsuit opposing the Department of Homeland Security (“DHS”) rule entitled Modernizing H-2 Program Requirements, Oversight, and Worker Protections, 89 FR 103202 (December 18, 2024) (“Final Rule”) with an effective date of January 17, 2025. This rule impacts BOTH H-2A and H-2B employers.
This rule, effective immediately, introduces several significant changes:
- Dual Intent Provisions: The rule allows H-2B workers to pursue permanent residency while in the program
- Recruitment Fees: Stricter regulations on recruitment fees and penalties for H-2B violations such as charging employees for prohibited fees.
- Mandatory and Discretionary Petition Denials: On January 15, 2025, the new mandatory I-129 petition form went into effect. It requires business owners to disclose any employer violations in the last three years. It’s broad, including local, state, or federal agents.
The lawsuit aims to challenge the broad, arbitrary, and discretionary powers granted by the rule. The ruling includes a three-year look back, allowing for discretionary denials of H2B and H2A petitions for companies with anti-labor violations within the past three years. The anti-labor violations can include OSHA violations or even minor paperwork violations.
Temporary Spending Bill
A temporary spending bill extending all current appropriations through March 14 has been enacted. This extension ensures funding continuity; however, it also means that the incoming administration’s discretionary authority regarding FY 2025 remains uncertain. While the Biden administration has already released H-2B visas, industry leaders are pushing to preserve discretionary authority for future workforce planning.
Looking ahead to FY 2026, advocacy efforts are focusing on securing long-term solutions. One potential avenue is the reintroduction of the “Closing the Workforce Gap Act” from the last Congress, which aims to tie the H-2B visa cap to the number of labor certifications issued by the Department of Labor. This formula-based approach would provide a more predictable and responsive system for landscape businesses reliant on seasonal labor.
Next Steps for Landscape Professionals
As with any new administration, laws and regulations previously enacted may change. It’s essential that landscape professionals are proactive in keeping pace with new and shifting policies that may impact their business operations.
- Prepare for Compliance: Work with your legal team to ensure all paperwork and compliance measures align with the new rule.
- Stay Informed: Subscribe to industry newsletters and advocacy updates for the latest developments.
- Engage in Advocacy: Participate in grassroots efforts to educate policymakers on the importance of the H-2B program for your business, and the landscape industry as a whole.
