By Patrick Devine and Ken Robinson, Ice Miller
President Biden signed the Bipartisan Infrastructure Investment and Jobs Act (IIJA) into law more than a year ago, but the roads and bridges construction industry has yet to produce a solution to address the labor shortage issue.
Driven by urban development, a growing population and need for infrastructure maintenance and improvements of our roads and highways, the industry’s labor shortage has been predicted for some time. This is not a new problem, nor is it a secret. In March 2022, 248,000 people exited the construction industry, and many due to early retirement, according to Fixr.1 Unfortunately, we have not experienced sufficient numbers entering the construction sector to fill these vacancies.
The COVID-19 pandemic magnified the problem. Estimates are that more than one million construction workers left the field in 2020 – many, again, opting for early retirement.
Although the industry has recouped roughly 67% of their workforce, they are still short about 430,000 workers, according to the National Center for Construction Education & Research (NCCER).
Employers must use all the tools in their toolbox to address this problem. One such tool includes looking outside our borders and supplementing our U.S. workforce with foreign national workers by using the temporary work (H-2B) program. Congress has typically capped the number of temporary visas at 66,000 a year – 33,000 for each summer and for winter; although, over the past few years we have seen some additional visas made available by the Administration.
How Does the H-2B Program Work?
The H-2B visa is a work visa that allows U.S. employers who meet specific regulatory requirements to bring foreign nationals to the United States to fill temporary (seasonal) nonagricultural jobs. The initial stay with an H-2B visa is approximately one year. The visa is designed for seasonal workers to return to their home country after the “work season” is over. The foreign national worker could then return the next year to the sponsoring employer. Along with hotels, hospitality, landscaping firms and large retailers, the construction industry is one of the key sectors with the highest demand for temporary workers.
H-2B visas offer numerous advantages in addressing the shortage of highway construction workers. These visas allow employers to hire foreign workers on a temporary basis when no qualified American workers are available. By utilizing H-2B visas, construction companies can access a pool of skilled workers who are willing to take on temporary assignments in the United States. This helps to maintain the progress of ongoing projects and ensure timely completion.
Any program that can help enable construction companies to avoid labor shortages and the subsequent delays and cost overruns associated with such shortages should be viewed as an economic benefit to all involved. By bringing in foreign workers, employers can maintain a steady workforce, prevent costly project delays and meet contractual obligations.
Critics argue that these visas may take away job opportunities from American workers. To ensure fairness, the U.S. government has implemented certain safeguards and regulations.
Importantly, before hiring foreign workers, employers must demonstrate that they have actively recruited American workers but have been unable to find suitable candidates. This ensures that job opportunities are offered to domestic workers first. Additionally, H-2B visas are granted for temporary positions only, and employers must pay prevailing wages, ensuring that foreign workers do not undercut American wages.
In addition, the issuance of H-2B visas is subject to an annual cap set by the government. This cap limits the number of foreign workers that can enter the country under this program, preventing an excessive reliance on foreign labor and ensuring that the focus remains on employing American workers whenever possible.
To begin the H-2B process, if the employer does not already have a pool of foreign national skilled workers from which to recruit, it is wise to establish a relationship with either an employment-based immigration legal practice group or a U.S. company that can help you source the employees you need from abroad (or both). Once the prospective pool of workers has been identified, depending on where we are in the calendar year, a temporary labor certification must be prepared and filed with the U.S. Department of Labor. Upon certification, the employer must participate in a lottery system to obtain the opportunity to file a visa petition with the United States Citizenship and Immigration Services. Once approvals are in-hand, a consular process abroad will be required to provide the foreign worker with a visa stamp permitting entry into the U.S. as an H-2B worker. The H-2B visa process is highly regulated and quite complex. It is important to make sure you are working with trusted advisors and agencies that can support the immigration work and required compliance to satisfy the H-2B program.
While H-2B visas can provide a temporary solution, it is essential to invest in domestic workforce development for a long-term solution. Encouraging young individuals to pursue careers in construction and providing them with the necessary training and education are key steps. Government programs, partnerships with educational institutions and apprenticeship opportunities can play a crucial role in attracting and nurturing a skilled workforce.
The shortage of highway construction workers poses a significant challenge to infrastructure development in the United States. H-2B visas provide a valuable tool for addressing this issue by allowing employers to hire temporary foreign workers when qualified American workers are unavailable. However, it is essential to strike a balance by investing in domestic workforce development to ensure a sustainable solution.
If you are interested in learning more about the H-2B visa; have any I-9/EVerify questions; or you just want to discuss the pros and cons of the H-2B visa program, please reach out to either Patrick Devine (Patrick.Devine@icemiller.com) or Ken Robinson (Kenneth.Robinson@icemiller.com) at Ice Miller.
This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader’s specific circumstances.
1 Fixr: “Construction Industry Labor Report 2022: Shortages, Earnings, and Conditions”