International Hiring

How non-immigrant visas fill Alaska’s staffing needs

By Nancy Erickson

People from all over the world come to Denali National Park and Preserve to glimpse North America’s tallest mountain and its wild setting. Not only are international travelers among the half-million or so visitors in a typical year, but the hospitality workers serving them at the park’s hotels and restaurants are often from other countries, too.

Foreign nationals working at Denali National Park and Preserve for the summer tourist season are likely in the United States with a J-1 exchange visitor visa. That program is just one of the authorization categories that international workers can use to legally hold jobs, and the visa programs are also tools for employers to fill their labor needs.

The Alaska Department of Labor and Workforce Development (DOLWD) forecasts total job growth of 5,300 jobs this year as the state slowly continues to recoup pandemic losses. However, worker shortages and the rising cost of labor require creative staffing solutions. Many industries are looking for qualified employees, and sometimes there aren’t enough workers to fill open positions. International workers are often eager to take these positions—if they can obtain the appropriate documents and permission to do so.

Visa processing slowed down during the COVID-19 pandemic, according to Italia Carson, an immigration attorney with Polaris Law Group in North Pole. “Overall, the COVID-19 travel restrictions prevented foreign nationals from traveling to the United States,” says Carson. “Moreover, COVID-19 shut down most embassies and consulates… which drastically slowed down the movement of foreign national workers to the United States.”

The waning pandemic is ramping up visa processing just as industries that hire non-immigrant workers are bouncing back to normal staffing levels.

Legal Avenues

Not every foreign national working in the United States is an immigrant, legally speaking. Immigrants include lawful permanent residents with green cards, who might be immediate family members of a US citizen. About 14 million green card holders are eligible to work in the United States, and most of them are on a path to citizenship.

Alaska gained 823 new lawful permanent residents in 2020, the most recent complete data from the US Department of Homeland Security yearbook; the pandemic depressed that level from 1,374 in 2019. As many as 1,799 immigrants obtained permanent resident status in Alaska in 2011. Immigrants are naturalized at a somewhat slower pace: 1,115 became citizens in Alaska in 2011, down to 624 in 2020.

While immigration based upon being an “immediate relative” of a US citizen is unlimited, federal law caps annual numbers of green cards issued to other family members in preference categories and foreign nationals who come to the United States for employment-based reasons. Visas for employment are limited annually to 140,000, which can be higher in any fiscal year. This limit includes an immigrant’s spouse and minor unmarried children. Visas such as EB-1, EB-2, and EB-3 for collegeeducated professionals and some unskilled workers are limited to 40,000 in each category but can be supplemented each year by unused visas from other categories. Visas for specialty occupations in the H-1B category are capped at 65,000 annually. Other visas such as EB-4 and EB-5 for religious figures or job-creating investors, respectively, are capped at 10,000, again, with supplementation possible.

Complicating this calculation further are special rules the US Department of State must follow regarding percountry ceilings of no more than 7 percent of the total immigrant count allocated to any single country in any fiscal year (October 1 to September 30). “The US Department of State processes these visa applications at US embassies and consulates across the globe; they are not processed in the United States,” Carson explains.

“But the State Department is planning to launch a pilot program to allow certain employment-based visas to be renewed in the United States so the foreign nation worker doesn’t have to leave the United States to renew an H-1B visa.”

All those categories are separate from non-immigrant visas, which are intended for workers temporarily residing in the United States. It can all be rather confusing, but luckily immigration law firms like Carson’s are available to help employers and employees navigate the system.

Carson worked as a federal attorney at Fort Wainwright, and after retiring from federal civil service with the US Department of the Army she founded Polaris Law Group in North Pole. The firm also offers legal services in the areas of real estate, bankruptcy, social security, public and private contracts, estate planning, and other areas of civil law in addition to immigration.

“It helps to have a diverse practice because our advice and counsel to our immigration clients goes beyond just immigration issues,” she says. “There are numerous cross-cutting issues that arise in immigration cases, and we take a holistic view toward serving our clients. It’s common for us to provide immigration services to a client and then, later, the client will seek our representation in other issues like starting a business, completing a comprehensive estate plan, or addressing employment law or taxation issues.”

Although based in North Pole, her practice covers all of Alaska and, effectively, the rest of the world. “Immigration law is federal law, so we have clients in Alaska, in the Lower 48, and outside the United States,” Carson says.

Two other types of travel visas available to foreign national workers sponsored by US employers are the H-2B and J-1. The H-2B and J-1 visa programs are the main avenue for temporary foreign workers in Alaska. The H-2B program allows businesses to hire thoroughly screened workers from foreign countries for temporary positions unable to be filled by local workers. The H-2B is a non-agricultural, non-immigrant, temporary program, meaning workers must return to their home country once the job is completed or when their visa expires.

The J-1 program is for international students to participate in an intern, trainee, teacher, camp counselor, au pair, or summer work travel program. J-1s are utilized heavily in the hospitality industries because the goal is interpersonal exchange and skill development, which foreign workers would take back to their home countries.

H-2B for a Season

Alaska offers a range of employment opportunities for H-2B visa workers, from landscaping, jewelry clerks, and forestry to construction, hotels, and more. However, the bulk of employer applications come from the state’s seafood processors.

More than 55 percent of Alaska employer applications listed on the US Department of Labor’s H-2B disclosure data for the fourth quarter of 2022 were from seafood processors, requesting more than 4,600 workers.

The seafood processing industry is recovering slowly following the pandemic, according to DOLWD. The industry lost 1,300 jobs in 2020 but recovered 600 by 2022. An additional 500 jobs are predicted for this year, bringing the total job count to within 200 of 2019 levels.

H-2B visas originated in the ‘80s as the counterpart to the H-2A, which is for seasonal agricultural labor.

Both are distinct from the H-1B visa, which is for professional workers.

The Immigration and Nationality Act of 1952 created the H-1 category for foreign nurses, the Immigration Act of 1990 split the category into other specialized occupations, and now the tech industry is by far the largest sponsor of H-1B workers. Temporary, in their case, is more than a single tourist, fishing, or harvest season, allowing them to stay in the United States for three years, extendable to six.

Carson cites the University of Alaska as an employer that sponsors H-1B workers. “The important thing to remember [is that] the H visas require the employer to prove it tried to hire Americans for these jobs but were unsuccessful and that it will pay the foreign national worker the prevailing wage for the type of work,” she says. “It’s not a way for American employers to pay employees less than the prevailing wage or benefits.”

The H-2B visas are designed for industries that have short-term surges of demand for labor. “The employer seeking an H-2B visa for a foreign worker has to demonstrate the need is temporary. It cannot be used where there is a permanent shortage. Seasonal, full-time employment needs are appropriate for H-2B visas,” Carson says.

H-2B visas are capped at 66,000 per year nationwide; however, in October 2022 the US Department of Homeland Security and the US Department of Labor issued a temporary increase of 64,716 supplemental visas for fiscal year (FY) 2023 (October 1, 2022 to September 30, 2023).

Roughly 44,700 of the supplemental visas are available to returning workers, and the remaining 20,000 visas are allocated to workers from Haiti, Honduras, Guatemala, and El Salvador, regardless of whether they are returning. In contrast to previously issued H-2B supplemental visas, where rules allocated for specific time periods within a fiscal year, this rule authorizes the supplemental visas for all of FY2023.

Approximately 35,000 additional H-2B worker visas were issued for the second half of FY2022, according to a March 2022 press release from US

Senator Lisa Murkowski’s office. In 2021, 22,000 supplemental H-2B visas were added.

“The department is making supplemental H-2B visas available earlier than ever, ensuring that American businesses can plan for their peak season labor needs,” states a December 2022 press release from Secretary of Homeland Security Alejandro N. Mayorkas. “At a time of record job growth, these visas will also provide a safe and lawful pathway to the United States for noncitizens prepared to take jobs that are not filled by American workers.”

Employers seeking H-2B workers must file an Application for Temporary Employment Certification with the US Department of Labor, while prospective workers outside the United States apply for visas and/ or admission.

Carson notes that all H visas are sponsored by US employers, so the employers pay all agency filing and legal fees. “These are complicated cases because the employer must negotiate this process with three federal agencies: Department of Labor, Department of Homeland Security, and the Department of State,” she says. “These are employer sponsored visas, so the foreign national cannot initiate these visas and cannot pay the fees.”

Furthermore, Carson describes H visas as “dual intent” visas. “This means an immigrant entering the United States on a nonimmigrant H-1B or H-2B visa can have an intent to stay here on a permanent basis, and that is acceptable under the Immigration and Nationality Act.”

J-1 for Exchange

The J-1 Exchange Visitor Visa Program is temporary by design. The Mutual Educational and Cultural Exchange Act of 1961 created the visas as a diplomatic overture, a way to invite people from other countries to experience American culture and return home with a more positive view of the United States. Skills developed during their stay would also help J-1 workers benefit the development of their home countries.

Indeed, Carson explains, “Typically, there is a requirement on the J-1 visa for the foreign national to return to their home country for two years to share what they learned for the betterment of their country before they apply for another visa to come to the United States.” Durations of J-1 visas are typically four months for summer internships and three years for student researchers.

The US State Department issued 353,279 J-1 visas nationwide in 2019, according to a January 2020 report from Justice in Motion, a migrant rights protection organization. That number was considerably less in 2020 due to an executive action restricting certain visas due to the COVID-19 pandemic.

Unlike other non-immigrant employment visas such as H-2B, the J-1 program has no prerequisite labor market test and no requirement that employers request permission to hire such workers, due to the fact the J-1 program’s main purpose is to foster cultural exchange.

“The purpose of the program is for foreign nationals to travel to the United States, work for a finite duration, and return to their home countries to share positive experiences in the United States while building stronger international ties,” Carson says. It does not provide the applicant with a pathway to permanent residency in the United States on its own.

Carson adds, “Employers or universities sponsor the foreign national, and usually attorneys are not needed to navigate the process. While there are no caps on the number of J-1 visas issued annually, the State Department does limit the number of J-1 visa holders by setting a certain number of slots given to program sponsors.”

A separate visa program, the J-2, is available for immediate relatives of J-1 visa holders, if they are also entering the country during the temporary exchange, such as the spouse of a teacher who’s in the United States for an entire school year.

The J-1 and H-2B visa programs are both tools for boosting the US economy and the foreign workers who want to contribute to it. In return for helping the host country with its staffing needs, non-immigrant workers take a piece of the American experience back with them to every part of the globe.