Blizzard & Bloom: Insights from the Ice and the Green Scene

The H-2B Visa Program: Breaking Through Labor Challenges

Jay Rotonnelli

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Immigration attorney Megan Kirchner pulls back the curtain on one of the most valuable yet misunderstood tools available to landscaping, snow removal, and seasonal service businesses facing labor shortages. The H-2B visa program offers a legal pathway to temporary foreign workers, but navigating this complex system requires specialized knowledge and careful planning.

Kirchner dismantles the persistent myth that H-2B workers represent "cheap labor," explaining that employers must pay government-determined prevailing wages that often exceed what they pay American workers. Add in travel costs, legal fees, and bureaucratic hurdles, and it's clear this program represents a significant investment rather than a cost-cutting measure. Yet for companies struggling to find reliable workers, the program proves invaluable for maintaining customer relationships and enabling business growth.

The conversation delves into the program's most significant challenge: a statutory cap that hasn't changed since the 1990s despite exponentially growing demand. With only 33,000 visas available per half-year against applications for 140,000+ positions, businesses face a lottery system that introduces tremendous uncertainty into their planning. Kirchner shares strategies for improving approval odds, including timing applications correctly and considering workers from Central American countries who fall under different quota allocations.

Most compelling are the stories of how these workers become integrated community members, forming long-term relationships with employers and contributing to local economies. Some businesses have welcomed the same workers for 10-20 years, creating extended family bonds that transcend borders. For many landscape companies facing chronic labor shortages, the H-2B program doesn't just solve staffing problems—it enables them to maintain their businesses rather than selling or retiring due to worker scarcity.

Whether you're considering the H-2B program for the first time or looking to optimize your existing application process, this episode provides essential insights from an expert who has helped businesses nationwide navigate this complex but potentially transformative immigration pathway.

Speaker 1:

Welcome to Blizzard and Bloom, the podcast where we navigate the storms and celebrate the triumphs in business and entrepreneurship. Join us as we dive into stories, insights and strategies from top professionals to help you thrive in today's evolving landscape. And now here is your host, jay Rotinelli.

Speaker 2:

Hey, hello everybody. Welcome back to Blizzard and Bloom. Last episode we had Darcy Creative's marketing team on with us, julie and Darcy and we shared some great insights on marketing for the landscape and snow industries. So that was a great episode. Hopefully you got a chance to listen to it Today. We are fortunate to have on a guest, megan Kirshner, who's an immigration attorney specializing in employment-based immigration. I've been fortunate enough to connect with you, megan, on LinkedIn, and then we've kind of shared some mutual connections and I think I want to let you speak. But this whole immigration thing is very important and I thought it'd be great to have you on. So thanks for joining us today and if you could kind of give us a little background of kind of who you are and what you have going, Sure, I'm an immigration attorney by trade.

Speaker 3:

I've been doing this for over 10 years. I'm an immigration attorney by trade. I've been doing this for over 10 years Really have done the whole spectrum of employment based immigration, or your alphabet soup, if you will, of immigrant visas. They all have some sort of acronym from your tech visas, your self-sponsored visas, and right now I'm focusing on H2 visas for agriculture, h2a and H2B for non-agricultural temporary seasonal visas. So I have a lot of clients in the landscape industry, so I'm certainly well-versed.

Speaker 2:

Great, great. So I was chatting with you earlier and I think part of it through our industry association. Some folks actually don't know what the H-2B program is right. So when they see some of our companies out there whether it's snow or landscape industry or service industries they're seeing foreign workers and they're not sure how you go about going that route. And if you could just share a little bit about what the H-2B program is.

Speaker 3:

Sure it's. You know, like I said, it's a temporary work program. It's not permanent, it is seasonal. So you know, for landscaping that means either you have a season that you only operate during a certain period of the year, up to nine or 10 months, or you operate year round and you have a distinct peak. Like your business records will show, you are busier during one part of the year. So it really feels a gap for a lot of people in the industry where you know maybe they can't grow or you know they just can't meet customer demand because there's a labor gap. So it allows US employers to fill that gap via temporary foreign employment.

Speaker 2:

Gotcha Gotcha, I know for us at Piscataqua Landscaping we rely heavily on the H-2B program and we've been I think this is our 16th year involved in the program. But during COVID there was that year where we didn't get visas and it was difficult. We had a lot of trucks and equipment that sat and we had to pay for throughout the year and that was painful. And not only that, but we couldn't deliver the services to our clients like we were Right. So what talk to us a little bit about? Like what's the procedure and the process of how you even get into something like this?

Speaker 3:

Right. So being informed is the most important thing. You know there are people that self-file, there are people that use attorneys, there are people that use non-attorneys. The place to start is just to be informed about the program. It is a long process.

Speaker 3:

The most important thing is to be prepared and just for frame of reference it's you know there's two start dates, essentially the way that the CAP works at this point, and so you either have an October 1st start date or you have an April 1st start date and I start April 1st, filings in August, the preceding August, and for October 1st start dates I start in April. So if you're wanting to get started in it, think about whether your business records, like, are you seasonal, do you operate only during certain times of the year or are you peak load, like, can you show from discernible business records that you're busier, say April through December? You know, maybe your revenue, maybe your contracts, payroll, overtime rates, something in your business records show that you meet that requirement and can tie that to either a tourist season or a weather season or some sort of business-related industry peak, and then you can kind of, once you meet these basic requirements, you can kind of learn more about the steps that are involved in that eight-month process.

Speaker 2:

Yeah, it's a long process. That I do know. As I shared with you, I'm not overly involved with the H-2B process here at Piscataqua we have a team that handles that but I do know that it's a lengthy process and you know there's a certain degree of forecasting out that you need to do Right For that. And you know what's this a business look like, what am I going to have for revenue? So that that's important too. And you know you bring up a good point. So when people you know sometimes they'll see us on job sites and say, well, how did you go about it? Or like, what are some of the challenges with it? Like what are the pros and what are the cons, or what are the challenges working with this program?

Speaker 3:

Sure, you know the challenges can be many and largely they're bureaucratic, bureaucratic. The biggest obstacle isn't necessarily for my clients, particularly in landscaping or snow removal isn't proving a season or a peak load. The hardest part is the cap. It is a capped program. There's only a certain number of visas available every year and it's broken up into two parts so that where I fall into that, the government fiscal year resets October 1st. That's the first half. Second half is April 1st and so what a lot of employers run into is it's not as difficult for winter. So if you're ice or snow, you know the availability doesn't run out. It's not as competitive for October 1st, but April 1st, that's your primary filing season and it's a lottery-based program. So the cap is a major obstacle, which is where that strategizing, talking to your attorney, trying to figure out what your options are, if scenario this is scenario A, scenario B, if you fall into group A, b, c, so on and so forth, kind of strategizing what your plan is to try and get workers, if the best case scenario is and what happens. You know timing it can be an issue as well. So if you don't, maybe you're in Alaska and you're, you can't start working April 1st, right, you can't have a start date April 1st. That can be a problem. So you know, by demand. You know demand outpaces supply by so much your start date may not. They're artificially set at April 1st so maybe you can't get into the program because your start date is April 1st. So that can be a challenge. For the lower you know the lower states, it's generally not as big of an issue but it can't. You know it can be.

Speaker 3:

Regulatory hurdles are huge. You know regulatory hurdles are huge. You know they have wage requirements, fee requirements. You know things you can experience requirements that you can't. You know you can't have a certain too much experience required. You can't say the guy you want to bring has 12 months of experience, but for a laborer, you know it's not reasonable, it's going to get kicked back. You know costs. Costs can be prohibitive depending on what size employer you are, because there's legal fees, government filing fees, like I said, travel fees for the workers. You know there's a lot of costs, you know so. But that being said, I have people that are very small that file for two workers and it's still worth it for them. You know return on investment is not worth it.

Speaker 2:

So it's really a situation. Yeah, and that's a great point, right? Because I've talked to others and two things come to mind like wow, you know, I don't know if we can afford it, and I always sit back and say, trust me, once you get into this program, you can't live without. It is really what ends up happening, right? And then the flip side of it is, you know, sometimes and again, it's all about perception out there in the public, but in some people's minds they're thinking, wow, you got cheap labor.

Speaker 2:

That's not the case no so can you talk to us a little bit about that and reaffirm that?

Speaker 3:

You know that is particularly a good point this year because the wages are set by the government. You can you know. If you're curious, you can go to Department of Labor's website, pull the wages. You'll get the wages estimated by type of job you're doing and where you are.

Speaker 3:

I had a lot of employers this year that their wage went up like a full dollar over what they paid last season. It was one of the largest wage increases I've seen and so it's not cheap labor, you know. That being said, labor costs across the country have gone up anyway. But you know so for most of my employers their US workers are probably already making more than the prevailing wage, or at least before this year. I had a few this year where this is where that cost comes in and compliance. You have to pay your corresponding US workers the same wage. They can't make less than a foreign worker. So if you've got a large workforce, that can be a big increase and that can make or break whether you want to continue if your prevailing wage goes up too high. So it's not cheap, but you know the proof is in the pudding. People are still doing it. So you know it's worth it, even though it costs more and it's definitely not free labor.

Speaker 2:

Yeah, there's that misconception and it's bothersome to me because I know, like a lot of the folks that have been coming to us for several years, you know that we've really integrated them into the community, right, and they're fantastic folks and they're really part of it's, an extended family. I know, like, when we do our holiday parties at the end of the year before they go back, like we make sure we do it before because we want all of them there, so that there's that misconception that that, oh wow, they got cheap labor. They don't, they only have to pay ten dollars an hour. That is such a such a misconception. Yes, so I appreciate you sharing that and reinforcing it coming from someone like yourself, because it's not the case, right?

Speaker 3:

No, no, my, my employers. You know that that's a definitely a sticky issue, because they, they, you know they have the stigma and they're like ah, you know? No, these guys, not only are they making more than they would at home, but they're, you know, they're making good money for here too.

Speaker 2:

Sure, sure, yeah, yeah and valued. So one of the things I was and I don't know a lot about this, but it was one of the things I want to ask you about was it was a returning worker exemption that was relative to the cap. Can you talk about that a little bit, what that was or what that is?

Speaker 3:

Yeah, there's been several iterations of that. You know the version that was a little more beneficial, you know was around from 2012 to 2016. You know that meant that the worker basically if they'd been on H-2B in a certain number of years before they didn't count against that cap I talked about earlier. That's a severe limitation and that was really beneficial. It wasn't tied to a particular employer. You know, you just recruited certain workers and you know there wasn't a separate filing or eligibility requirement that the employer had to really undergo.

Speaker 3:

The current version which we'll see if it's status quo the next year it's a new administration. But basically, after the cap gets hit, during the first and second half, there is a supplemental visa release for the federal rulemaking process. They've issued it every year for the past, you know, since 2019, it's been in a similar setup as it is right now. So essentially, any worker that's held an H-2B visa at least once in the past government three government fiscal years can qualify for this additional pot of visas. They're not cap exempt. They still count against that separate pot. So it's a little different than what we had, you know, a few years ago, but it's better than nothing.

Speaker 3:

It does have some pressure release on the cap. So without getting into the nitty gritty, you know with the regular cap for the spring, you know I have 20% of or 25% of my employers get in underneath that cap with no restrictions, right Returning workers. There's another maybe 20 or 30 percent that. So it provides additional visas but still doesn't meet demand. You know there are pushes in large H-2B lobbying groups to change that version so to have a different type of cap exemption that's employer specific. You know that has been. There's been different iterations coming through, trying to go through Congress for years but there is constant work to try and improve it and kind of take away that that risk of not getting workers year to year.

Speaker 2:

Yeah, yeah, and you know we're kind of talking about that cap and how that relates to folks that have been coming that cap. From my understanding that hasn't really changed much from a right, and so could you talk a little bit about that, because my understanding is that cap hasn't changed yet. Businesses are growing, you know, population's growing, the needs are ever growing.

Speaker 3:

So right that cap hasn't changed since the 90s and obviously economics, the labor landscape, everything has changed in that amount of time, you know. But this is just static, which is why there's been different Attempts in Congress to temporarily take some pressure off of that cap. But no, it hasn't been enough traction or consensus because it's such a sticky issue immigration in general to make any substantive permanent changes to it. And so most years, you know, if you file in April for first start date, there's only 33,000 visas but there may be applications for 140,000 visas, you know, and there's only for that returning worker. You know, cap, that we just talked about the supplemental visas. There's only 19,000 for the spring and you know 20,000 for the fall and it's still. Those get hit every year and don't make it through all of the employers that would have wanted to have workers in the program.

Speaker 2:

Yeah, yeah, it's something that it's not a hundred percent in.

Speaker 3:

No.

Speaker 2:

To your point. It's a lottery, right and and there's a processes and systems that you need to follow. So if somebody was looking to get into this, like somebody had. Somebody asked me a couple of months ago like, oh so what Web site do I go to look and start filing the paperwork? And I was like time out, like it's a.

Speaker 2:

It's a lot more involved than that right don't, don't, don't try to wave the ocean by yourself. So, yeah, what is the right process for somebody looking to get started down this road of the h2b program?

Speaker 3:

yeah, you know, talk to somebody. There's a lot of attorneys will have either literature or um. Some will have, like my myself, for instance, I do free consultations just because the number of people I talk to that either can't meet the program or can't afford it. You know it. It's not worth my. I'd rather have good faith and talk to someone to kept trying to learn about the program. You know I I even have. I try to get as much literature out there as I can.

Speaker 3:

You know I keep a Reddit thread to about H2B. To people like, hey, are you interested? You know this is what what it's about. You know, maybe it's right for you, maybe it's not. You want to talk more? Contact me, right.

Speaker 3:

So you know, just be aware there's multiple government agencies involved. There's department of Labor, there's USCIS, there's Department of State for the consulate, for the visa process. There's a lot of steps and if you miss a deadline, you can't recover the number of people that reach out to me that say, hey, I did it myself or hey, I used an agent, or I used an attorney that doesn't know has never filed one of these before and I'm like, well, it's a fatal flaw, I can't fix it. I can help you next year. So obviously cost is a consideration. Not everybody can afford an attorney, but if you can it could make the difference between getting workers this year or not, especially if you get into the gray area of all the supplementals and all of the cap. Or be prepared to know, maybe you won't make the cap so you need to be ready for a backup option. You know, you won't necessarily know all of that just by looking at how to do the process.

Speaker 2:

Yeah, gotcha, it's interesting, I know just from you know we set a budget every year of what our goals from a sales standpoint are going to be. But we need to also be prepared to make adjustments, because and I'm not saying it drives our entire business, but it drives a great portion of the business and but. But that's the only way we've really been able to grow, and I don't I mean there's other ways, sure Mergers, acquisitions, all of that but to continue to deliver service in the same market that you're in. You're always dealing with the same labor pool, right? So if there's only X amount of labor, you're not going to grow exponentially. If there's no more to pull from, no.

Speaker 3:

And the number of times I just have that conversation with people that have done it one year and they come back the next year and like we have to do it again. Like you know, we we can go 20% this year because now we can take on new contracts. Like we know we're going to have 10 additional guys, so like we can plan how many contracts we can take or we can bid on this. You know, municipal contract that's going to be a three-year contract. You know it doesn't necessarily make or break everyone and whether they can operate, but it definitely can severely help impact growth, positively or negatively depending on how your season goes. And you know I've even had conversations with employers where I'm trying to hire. I'm trying to hire, I can't find anybody. I'm not getting my guys this year I might just retire or sell my business because I can't. I can't operate this year. You know I've been trying to hire US workers to backfill because I knew I'm not getting my my HTV workers and I I don't know what I'm going to do.

Speaker 2:

Yeah, that's interesting because and you I'm sure you've seen it in publications but the whole M&A market of that's what's happening, right, you have these sole proprietors or you know, small business owners, and they're just at a point, there, at wit's end, and they have never had the opportunity to use the H2B program or even kind of just really thinking outside the box a little bit. And it's great when you can absorb a company, but most often when we look at it, we do it because we're looking at the labor force too and what they have for team right. So it's great to bring in all this business, but if you don't have the labor force too and what they have for team, right, so it's great to bring in all this business, but if you don't have the labor force to go with it, then that's a problem as well. So it's an interesting road to weave and I think the longer you're in it, the more and you're working with somebody like yourself you start to find little ways to work through things, right, right.

Speaker 3:

And yeah, that's a good point and one way people can kind of mitigate their risk if they're flexible and not everyone can do this because, like you said, your guys are family and that I run across a lot, you know. So if someone's been in the program they're a little less flexible, so they're only looking at the same guys. So they want returning workers and that's it. And obviously there's a limitation to that for newer people to the program as it stands today and we'll see if this continues in the future but it's been like this even under the this administration and its first you know version. This was still a thing.

Speaker 3:

There's a separate cap for Central American workers, like they don't have to have had an H-2B before, and that cap, again based on prior years, has never been met. So if you're new to the program and don't need a particular country and you're open to new workers, I like to tell people you know, if you're, it's not a matter of if you're going to get workers even in the spring, it's when you know, because if you're in group F, you'll be a little later. They may not start April 1st, but they're going to come. There's going to be visa space left for that. So you know it's not all doom and gloom in its current state, but you know it just depends on how flexible you are and what your needs are.

Speaker 2:

Gotcha, gotcha. Yeah, I mean, do you see, now you've been in it quite a, quite an extensive period of time Do you see any like trends changing with it or policy changes with the program that you're seeing, or do you think might be heading in a direction?

Speaker 3:

You know, it's really too early to tell whether this is going to be a program that's really impacted by the administration or not. It wasn't as impacted last time negatively, like you know your asylum or something like that or H-1B.

Speaker 3:

You know things did work a little slower. You know there were fewer supplemental visas. There were. There was a consular appointments were required and they're kind of bringing that back, which that slows down when your guys are going to get here, cause now that rather than just having to submit their passport they have to wait for an actually first appointment Exactly they have to show up and see an officer face-to-face. That does slow things down, so that you know that will make things slower, not impossible.

Speaker 3:

I would expect an uptick in administrative processing, which means if your worker, you know, is going through the consulate, going through the interview, if there's something in their background that has been a legal entry or something that they're flagged, you know they're going to be more likely to be put in secondary processing where they don't necessarily get their visa same day. You know I've had workers that have been here, you know, 10 years and suddenly one year they get admin processing or denied or something like that. You know, just something has popped up in the system that they didn't see before. That may increase it's again a little early to tell, but that could that could happen, so you know.

Speaker 2:

It's interesting, it's all these little pieces and components of it, and when. I think about a company or individual trying to maneuver through that process themselves, kind of to your point, like it's a failure right off the get-go, and I hate to be that way, but that's the reality of it right when you don't know the program.

Speaker 2:

You know we're pretty well versed in it only from you know, being involved in it so long. But there's still a lot to it and the fact of the you know of the matter, that you know these folks. They're integrated into the communities, they're paying taxes, they're spending their dollars here. So everybody thinks they send every single dollar home. It's not the case and it just it's been a great fit for us. They've been great in the community. Now we have folks that that have worked for us for 10, 15, 20 years and they've, you know, they've come together and now they're connected on Facebook and they're visiting down there and or wherever they are across overseas. So that's pretty cool to see that happening. But you know, again, when we talk about long term within the green industry, I, without something changing, you know within our country, like there's no, there's no relief outside of utilizing this program and there's the right way to do it and the wrong way to do it. And you know this is certainly the right way to do it.

Speaker 3:

So you do make a good point with you know the future and nothing getting better, in fact, if this administration is as strict with undocumented as they say they're going to be, there's a lot of people in the industry and construction and a lot of other agriculture that do utilize undocumented workers, and if those workers are now too risky to employ, or they're hiding or they've been deported, the only other option is H2. And if we don't have any more numbers, demand's going to be even higher and everyone's going to need it even more.

Speaker 2:

And to your point if they were here illegally and you were done doing it that way. Good luck trying to get into the H-2B program, right. Because you will be flagged and you are not going to be one of the first ones to get some help. If anything, you are going to probably be banned from it.

Speaker 3:

That's an excellent point. That is something new with the H-2 modernization that came out as of January this year. As part of that, those questions, there's now questions on the form that says have you had wage and hour violations? Have you had any Department of Labor, uscis health code violations? Have you had any violations as a business? And they have the right to. Now you know deny you or you know debar you because you have had violations. So it's even more important to make sure you're staying in compliance and handling things the right way, or maybe you'll be shut out altogether.

Speaker 2:

Yeah, yeah it's, yeah it's tough. I know people you know do what they can to stay in business, but you're really going to do it the right way, you know. So if there was kind of it's kind of a closing note here, if there was some advice you'd want to give to some business owners, kind of preparing for some of these challenges or facing these challenges like some advice you could give to them on, you know what, what their next steps might be and how they could benefit from this.

Speaker 3:

You know, if you're struggling to to hire US workers, you're hiring as many as you have available and you still can't meet your customer demand. Your reputation's on the line. You need to meet your client obligations. It's worth exploring. It's not a perfect program, but it is what we have to work with and it can drastically improve your revenue or your reliability, even if you have the same revenue. You know, it just means that you're not retraining every two weeks because the guy that started two weeks ago is gone. That's frustrating in itself, right.

Speaker 2:

And costly. It's expensive.

Speaker 3:

And costly, right, you know. So if you're interested in learning more about the program, shoot your shot, reach out, see if you qualify, see if the cost makes sense to you and you know if it does. Great, there's lots of people that can help. Make sure you go. If you go to an immigration attorney, make sure they've done H-2B in the past. That doesn't mean that immigration attorneys that don't do H-2B can't, but just like your doctors, you know you have specialists. You know not all procedures are the same, not all processes are the same. So make sure you, you you know yeah, no, no, who you're working with, um, whether that's an attorney, an agent. If you're doing it yourself, for goodness sake, do as much research as you can Cause. Otherwise, when I get you the second year because something went wrong the first year, sometimes I can fix it and sometimes I can't because they.

Speaker 3:

I've had that happen before. If someone had an application, it was denied. They say, okay, I want to try again. I get a notice of deficiency from department of labor and says, well, this is totally different than your last application and I say, okay, here we go. We're going to re-argue the whole thing and you know I can be successful, but and I get it through, but that being said, if that happens, we might miss the cap because of it, because now we've delayed the process by having to ask questions that I shouldn't have to answer.

Speaker 2:

Yeah, yeah, good point, good point. So moving forward. If somebody is looking for, you know, folks in the in the in next October really April is the time Correct and then after that for the spring, when do you think they need to start working on the process?

Speaker 3:

You know April is not a drop dead date for October. That is when I usually send out my contracts in March and start the process in April. Just depends on how long department labor is going to take. I can do them as late as May sometimes and still get in under the cap for October. If you're looking at next spring, april 2026, I start to send out contracts in July and start working on them sometimes the same month July, august. That being said, I have taken clients as late as October and still been successful. But then you know, I can't guarantee it when it's that late or that close to filing, because anything could happen. I could file a perfect application and department of labor has asked him the question, you know, sent something asking for something trivial that's already there or something that shouldn't be asked for, and I have to correct it and I don't have time to refile an application if it's too short a timeline, right?

Speaker 2:

So we just want some breathing room in there. Yeah, no, that's great. Listen, I appreciate your time today. Super informative Folks. This is going to be very, very beneficial for folks not only in the green industry, in the snow industry, but in the service industry as well. So if somebody wanted to reach out to find you, how would they find you? Either online or, yeah, they can track you down LinkedIn it's Kirchner Law PLLC.

Speaker 3:

I'm in Virginia, so if you find Kirchner Law Immigration, find me. I'm outside of Charlottesville, virginia, so either my website, linkedin. I'm on Instagram, facebook and Twitter so you can find me a lot of places If you.

Speaker 2:

if you look for Megan Kirchner, you'll find me, Right, and this is I mean. You can help folks all across the United States, correct?

Speaker 3:

Yes, right, I've got clients all around the country.

Speaker 2:

Great, awesome. Well, thanks for your time. I really appreciate it and I'm sure you'll have some folks following up with you, so yeah, that'd be great.

Speaker 3:

I'm happy to help, thanks again.

Speaker 2:

Great Thanks everybody for listening. Next episode we have Dave Gallagher from the Syma Foundation. He'll be joining us, so thanks everyone for your time.

Speaker 1:

Thanks for tuning in to Blizzard and Bloom with Jay Rotinelli. We hope you feel inspired and empowered. Don't forget to subscribe and leave a review. Join us next week for more insights and stories to help you bloom in your business journey.