Nataly 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 the key requirements companies need to attain H-2B workers?
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 or anything else landscape pros need to be aware of if they use 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: And why is the program so important for the industry?
Mualem: The program is absolutely critical because the industry is facing a severe labor shortage. A recent survey showed that about 91% of companies reported they’re either not fully staffed or could grow significantly if they had more workers. Beyond just filling vacancies, the H-2B program provides access to highly skilled labor. It allows companies to be specific in their requirements and bring in workers who are skilled, loyal, and committed to staying. This dramatically reduces turnover and saves businesses money on vacancies, training, and recruitment costs. The green industry is the largest user of H-2B visas, accounting for around 40% of all H-2B workers during the peak months. While the program does have its limitations, particularly with the cap on visas, the benefits are undeniable. You’re getting a reliable, skilled workforce that’s committed to the job, helping to address the labor shortage in a meaningful way. In some areas, no matter how competitive the benefits or incentives are, there simply aren’t enough workers. The H-2B program bridges that gap.
GIP: On the flipside, are there any challenges 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 workers can then serve as a cap-exempt workforce for the following season.
Another challenge is the inconsistency in how cases are processed. Unfortunately, there’s a lack of clarity and standardization in decision-making because many officers aren’t fully trained. The Department of Labor itself is dealing with labor shortages and high turnover, which contributes to these inconsistencies. This is where having an experienced attorney is invaluable. A skilled attorney can navigate the nuances of the program, ensure legal standards are met and significantly improve your chances of a favorable outcome.
GIP: Are there any misconceptions about the program?
Mualem: One of the biggest misconceptions about the H-2B program—and a major reason some people oppose it—is the belief that it takes away American jobs. The reality is quite the opposite. To qualify for H-2B visas, companies are required to actively recruit within the U.S. first and demonstrate that their efforts have not yielded any workers. This process involves significant expense and effort, so companies only pursue H-2B workers when they genuinely cannot find local labor. Additionally, the Department of Labor mandates that any U.S. applicants for the position must be interviewed, and any rejection must be backed by a legally valid reason. Another misconception is that the program allows employers to undercut American workers by paying lower wages to foreign workers. In truth, employers are required to pay the prevailing wage, which is determined through a survey of the local job market. This wage represents the minimum standard for that role in that area, and companies cannot pay less. The program is a response to labor shortages, not a tool to reduce labor costs. There’s also the perception that the program is exploitative to workers. In reality, the vast majority of companies treat H-2B workers fairly, providing the same benefits and workplace standards as they do for their domestic employees. Most employers using this program are deeply invested in ensuring their workers are treated with respect and dignity. Finally, there’s confusion between the H-2A and H-2B programs, especially around housing requirements. The H-2A program, which is for agricultural workers, mandates that employers provide housing. That’s not the case for H-2B, which applies to nonagricultural industries. Some companies voluntarily offer housing, but if they do, the cost is typically deducted from the paycheck.
GIP: What do landscape companies need to do to make sure they’re complying with the rules once they receive workers?
Mualem: Compliance starts even before your H-2B workers arrive. One of the most important steps is selecting a recruiter carefully. That recruiter must sign an agreement confirming they will not charge workers any fees for obtaining the job. This is a critical compliance requirement and ensures the process remains fair and transparent. Once the workers arrive, one of your key responsibilities is to assist them in obtaining a Social Security card. This means directing them to the nearest Social Security office and providing the time they need to complete the process if they request it. Beyond these initial steps, H-2B workers should be treated like any other employee in your organization, including for tax purposes. You’ll need to withhold taxes appropriately, follow the same rights and responsibilities, and ensure they are integrated and treated equally in your workplace. Compliance is as much about fair treatment as it is about meeting legal obligations.
GIP: And are there any changes coming up on the horizon?
Mualem: Certain aspects of the H-2B program are established by Congress and remain consistent regardless of the administration in power. These include the annual cap of 66,000 visas and the fundamental requirements related to seasonality and worker justification. However, administrative discretion can influence other elements of the program. For instance, the issuance of supplemental visas beyond the statutory cap often varies with each administration. Additionally, the processing speed and the level of scrutiny applied to applications can shift. Historically, the Department of Labor has adopted a more stringent approach under Democratic leadership, while the Department of Homeland Security has been more rigorous under Republican leadership. These variations can significantly impact how the program operates and how employers navigate the application process. Advocates for the program continuously ask for reform - especially regarding the number of visas available.
GIP: Is there anything else landscape companies need to know?
Mualem: The most important thing to understand is that the H-2B program isn’t a quick fix. While it’s an incredible solution for addressing labor shortages when implemented correctly, it works best with proper planning and patience. For first-time filers, expect more scrutiny and a slower timeline. The process takes time to build momentum, and your first season may come with challenges as you establish a track record with the Department of Labor. Over time, as you gain registration and start bringing back returning workers, the process becomes much smoother. The key takeaway is to think of the H-2B program as a long-term strategy rather than a last-minute option. It requires patience and persistence, but once it’s up and running, it can provide tremendous relief for your business. Used correctly, it’s an excellent tool to address staffing needs, but it’s essential to approach it with realistic expectations and careful planning.
