SEA Campaign to Address DOL Processing Delays

Due to the unprecedented labor shortage faced by employers in  seasonal occupations, demand for the temporary, non-immigrant H-2B guestworker program has increased significantly over the last two years. As a result of  limited visa availability compared to visa demand , employers with a spring or summer date of need must request an April 1st date of need and thus must apply when the application window opens on January 1st. Due to the Department of Labor’s limited resources, H-2B regulations provide employers with a 3-day application filing window  in an effort to not overwhelm their system.  Due to the high demand for visas in the second half of the government’s fiscal year (April – September), the number of worker positions requested during this initial 3-day filing period far exceeds the number of available H-2B visas.  Below shows the number of applications and positions requested during this April 1st filing period over the past five seasons.

Year Applications Positions Requested
2019 5,276 96,400
2020 5,677 99,632
2021 5,403 96,888
2022 7,875 136,555
2023 8,693 142,796

In 2019, DOL changed its processing structure to address the skyrocketing demand for H-2B visas. Under this system, DOL assigns each application to a Group after the 3-day processing window closes.  The applications are then processed in the order of group assignment, starting with Group A. DOL does not process any subsequent groups until first action is taken on all applications in the preceding Group.

Regulations require DOL to issue a first action (I.e., a Notice of Acceptance or Notice of Deficiency) on every application  within seven business days of receipt. However, with current demand, DOL is taking over 90 days to issue a first action on an alarming percentage of applications. For employers to receive their workers on time, they must receive a first action from DOL on or before the middle of February. This year, over half of applications did not receive a first action until AFTER the middle of February. These delays have a trickle-down effect, meaning even when supplemental visas are still available, these employers will receive their workers late.

Employers in Groups E-G who requested NCA workers did not receive their workers until May and for some, June, because of DOL’s processing delays. This was despite the fact that visas were available. Employers who requested returning workers with a May 15th start date, did not receive their worker until mid to late June. This was entirely the result of DOL’s processing delays. Landscapers who expected their workers to arrive on May 15th, planned contracts around it, had to either default on the contracts or subcontract them out.

Over the last three months, we have educated our Congressional allies and supporters on the effect of DOL’s processing delays to our membership. To date, this has resulted in three Congressional letters to DOL.

  1. Senator Cassidy, Capito and Collins letter.
  2. Senator Shaheen letter signed by Hickenlooper, King, Cornyn, Tillis, Collins, Manchin, Risch, Murkowski, Crapo, Coons, Rounds, Barrasso, Lankford, Whitehouse, Klobuchar, Lummis, Hassan and Graham.
  3. Rep. Virginia Foxx letter (R-NC-5) letter.

DOL has since responded to each letter with a template:

  1. Surge in applications- “OFLC has processed this unprecedented level of applications as quickly as possible, and for applications filed on January 1-3, OFLC issued enough certifications to fill the statutory H-2B. The primary factors contributing to the risk of processing delays are annual increases in application volumes across all foreign labor certification programs, H-2B included, and the recurring concentration of applications described above. The volume of H-2B applications doubled from FY 2016 to FY 2022. At the same time, applications related to other DOL labor certification programs similarly increased, with a record number of applications submitted in FY 2022 in the H-2A, H-2B, PERM, and Prevailing Wage Determination programs.”
    1. We acknowledge DOL is facing unprecedented surge in H-2B applications without a corresponding increase in funding and support increasing funding for OFLC administration of the H-2B program but money is not the only answer. The H-2B program, unlike the H-2A program, is not fee funded. We support providing DOL with fee authority. DOL is provided fee authority in our negotiated agreement with labor that should be introduced as legislation soon by Senators Graham and Padilla.
  2. OFLC claims they were more productive this year than last year- “OFLC staff have worked diligently to process the unprecedented volume of applications. OFLC has seen consistent increases in production since 2021, including a 4.7% increase in 2021 and a 47% increase in 2022. OFLC is currently on pace to exceed production compared to last year.”
    1. This is not true. We analyzed, on a per application basis, the amount of time it took DOL to issue first action this year as compared to last year. Last year, it took DOL an average of 82.6 days per application to issue a first action. This year it took DOL 91.6 days. 
  3. OFLC issued enough certifications to fill the statutory H-2B cap by the middle of February 2023, which is about six weeks prior to employers’ start date of need. This means, for the vast majority of these employers, while there were initial delays given unprecedented demand and lack of resources, they were still in a position to seek visas for requested workers available under the cap in a timely way based on their stated dates of need.
    1. For employers who received their visas under the statutory cap this may be true but not for the employers who received their workers as a result of the supplemental visa release. Worker arrival was even delayed for employers from Groups B-D who were able to take advantage of the April 1st supplemental returning worker allocation that was made available in mid-March. If DOL had adhered to its obligation to issue a first action on all applications within seven business days, workers requested from DHS’ supplemental release would have arrived on time. This delay was especially detrimental to employers who requested workers from Northern Central America. The process in the NCA countries takes several weeks longer than countries with a more well established H-2B infrastructure, such as Mexico, so any delays by DOL are compounded. For example, an employer who was in Group F and did not receive its labor certification until mid-April, its workers from El Salvador and Guatemala did not arrive until the end of May. From Mexico, the workers would have arrived the middle of May.

And now DOL is off to a slow start processing October 1 requests. As of July 29th, DOL had only issued a first action to 55% of applications filed between July 3rd and July 5th. We are working with our Congressional allies on a response to DOL and will remain persistent as we work with Congress and the administration to address these chronic delays.

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