COVER STORY BY SARAH WEBB
Top Qs on H-2B
An H-2B expert discusses everything landscape pros need to know about H-2B. @Hitesh.stock.adobe.com
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ataly Mualem, managing attorney at Mualem Firm, sits down with Sarah Webb, editor of Green Industry Pros, to discuss the H-2B program and what landscape pros need to understand.
Green Industry Pros: Can you talk about the basics of the H-2B program and what landscape pros need to know? Mualem: One of the most critical requirements for
landscaping companies to understand is that H-2B visas are specifically designed for seasonal businesses. Now, what counts as “seasonal” can vary. For some businesses, it means operations fully shut down for part of the year. Others fall under what’s called “peak load seasonal,” where the business operates year round but experiences a significant spike in demand during certain months. In those cases, the permanent workforce isn’t enough to handle the workload, so temporary workers are brought in to meet that peak demand. Another important factor is justifying the number of workers you’re requesting. When we file a petition, we must be precise about how many workers are needed, and that number has to align with your business operations and records. It’s not arbitrary; we need solid documentation, like contracts or other forms of justification, to support the request. Timing is also key. The application has to be submitted 75 to 90 days before your intended start date, but given the cap on H-2B visas, we always aim for the full 90 days. And, keep in mind that before you can even file, you need to obtain a prevailing wage determination—a process that typically takes about two months. So, planning ahead is absolutely essential.
GIP: Have there been any recent changes to the program? Mualem: There are two significant updates: One is
permanent, and the other is discretionary. The permanent change is that once a company is approved for H-2B, they
are registered for three years. During this period, as long as the number of workers and the start and end dates remain relatively consistent, companies no longer need to prove seasonality or submit a statement of need annually. This streamlines the process significantly and reduces the administrative burden on landscaping companies. This change stems from a class action lawsuit, which highlighted the unnecessary strain placed on businesses by requiring them to repeatedly prove seasonality. It’s a game-changer that was implemented just last year. The discretionary change involves the supplemental cap. Over the past few years, additional visas have been made available on top of the annual limit of 66,000. The current trend is that these supplemental visas are released early in the fiscal year, covering the entire year. This is a departure from the previous approach, where supplemental visas were released at an unpredictable future date, causing delays and uncertainty. Now, the main cap of 66,000 visas is split into two batches: one released on October 1, marking the start of the fiscal year, and the other on April 1, for the second half of the year. Knowing when these supplemental visas will be available has brought much-needed predictability and stability to the program, making it easier for businesses to plan ahead.
GIP: Are there any challenges associated with the program? Mualem: The biggest challenge with the H-2B program is
the cap on visas. The demand far exceeds the supply, and that creates significant hurdles for many businesses. Overcoming this often requires creativity and strategic planning. For example, workers who entered the country after October of the previous year and are still in the U.S. can be cap exempt. In-country transfers are another option—if a company has completed their seasonal work and no longer needs their workforce, those workers may be available to recruit. Businesses can also take advantage of the fall cap by bringing in workers as early as October of the previous year. Those
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