H-2B

H-2B Visa & Process

 Given the current unemployment rates, many US businesses are in desperate need of foreign workers to satisfy employment needs.  The H-2B visa can be a great opportunity to fill a shortage of non-agricultural workers when the need is for season, peak load, intermittent work or a one-time need.

There is a statutory numerical limit, or “cap,” on the total number of noncitizens who may be issued an H-2B visa or otherwise granted H-2B status during a fiscal year. Currently, Congress has set the H-2B cap at 66,000 per fiscal year, with 33,000 for workers who begin employment in the first half of the fiscal year (October 1 – March 31) and 33,000 for workers who begin employment in the second half of the fiscal year (April 1 – September 30).

Because there are far more applicants than visas available, it’s very important for an employer to understand the steps and deadlines involved in the process.  Generally, the U.S. Citizenship and Immigration Services (USCIS)  grants H-2B classification for 10 months or less, at which time the worker returns to his or her home country. If the employer would like the worker to return for work the following year, the employer can request that USCIS renew the visa. It is also possible for a worker to change H-2B employers while still in the U.S. and have the original visa term extended for a temporary period. An employer will want to begin the process early with an experienced immigration attorney.

H-2B Steps

Below are generally the steps required for issuance of the H-2B visa:

1. The US employer must show that they have tried and been unable to find a US worker to fill a non-agricultural position.

To show that you are unable to find U.S. workers to fill the position, the employer must demonstrate that they have taken good faith steps to recruit U.S. workers. This includes advertising the job opening, offering the job to any equally or better qualified U.S. worker who applies, and complying with any applicable labor certification process. The process must meet strict U.S. Department of Labor (DOL) requirements and is not the same as a typical job posting.  For example, the requirements include posting specified language with the State Workforce Agency and filing a temporary labor certification application with DOL.

2. The employer must file the petition with USCIS. The petition must include evidence that the employer has tried and been unable to find a U.S. worker to fill the position, and that a foreign worker’s employment will not adversely affect the wages and working conditions of U.S. workers.

3. Once the petition is approved, the foreign worker can apply for an H-2B visa at a U.S. embassy or consulate. They will need to provide the following documents:

• A passport that is valid for at least six months beyond the period of stay in the United States
• A completed visa application form
• A photograph
• Evidence of the approved petition
• Payment of the visa application fee

4. If the foreign worker’s visa application is approved, they will be able to travel to the United States to work for the employer who filed the petition on their behalf.

H-2B Employer Assurances and Obligations

As part of the H-2B application, the U.S. employer must make the following assurances and obligations to the workers and the U.S. Government.

• Rate of Pay Payment of the offered wage, which equals or exceeds the highest of the prevailing wage or Federal, State or local minimum wage, free and clear of deductions at least every two weeks during the entire certified period of employment. Alternative payment arrangements such as piece-rate, commissions, or bonuses are only permissible if the employer guarantees a weekly wage that equals or exceeds the offered wage. Any piece-rate must be no less than the normal rate paid by non-H-2B employers in the same occupation and area of intended employment;
• Deductions Deductions from wages must be made if they are required by law; all other deductions must be specifically disclosed in the job order and may only include the reasonable cost or fair value of board, lodging, and facilities furnished; and deductions of amounts authorized to be paid to third persons for the worker’s benefit through his/her voluntary assignment or deductions that are authorized through a collective bargaining agreement(s);

• Full-time Employment Offer of full-time employment of at least 35 hours per week, with a single week being used for wage computation purposes;

• Disclosure of Job Qualifications and Requirements Disclose job qualifications and requirements which must be bonafide and consistent with the normal and accepted job qualifications and requirements of non-H-2B employers in the occupation and area of intended employment;

• Three-fourths Guarantee Offer to each worker employment for a total number of work hours equal to at least three-fourths of the workdays of each 12-week period (6-week period if the job order is less than 120 days), unless the certified period of employment is shortened by the contracting officer due to unforeseeable circumstances outside the employer’s control;

• Impossibility of Fulfillment In the event that the employer must terminate employment due to reasons beyond the employer’s control (i.e. Acts of God, or similar unforeseeable man-made catastrophic events), the employer must fulfill the Three-fourths Guarantee based on time elapsed and must make every effort to transfer the H-2B worker or worker in corresponding employment to other comparable work acceptable to the worker and consistent with the INA. If a transfer is not effected, the employer must return the worker to the place from where the worker came, at the employer’s expense, or transport the worker to the worker’s next certified H-2B employer.

• Frequency of Pay Pay workers at least every two weeks or according to the prevailing practice in the area of intended employment, whichever is more frequent;

• Earnings Statement Provide accurate earnings statements to employees each pay period with all deductions and reimbursements clearly itemized and hours worked and hours offered listed;

• Inbound Transportation and Subsistence Payment or Reimbursement Pay or reimburse transportation and subsistence costs for workers to the place of employment after the worker completes 50 percent of the period of employment covered by the job order, if the employer has not previously reimbursed such costs;

• Outbound Transportation and Subsistence Payment or Reimbursement Pay return transportation and subsistence if the worker completes the job order period or is dismissed early;

• Visa Fees Payment or Reimbursement Pay or reimburse visa, border crossing and related government-mandated fees in the first workweek;

• Employer-provided Items Provide all tools, supplies and equipment;

• Disclosure or Job Order Provide workers with copies of the job order no later than the time at which the worker applies for the visa, if the worker is departing directly from his or her home country, and display a poster describing employee rights and protections in English and, if necessary and made available by the Department, another language common to a significant portion of the workers at the work site;

• Notice of Worker Rights Post and maintain in a conspicuous location at the place of employment a poster provided by the Department of Labor that outlines the rights and protects for H-2B workers and workers in corresponding employment. Employer must post the poster in English as well as in a language a significant portion of workers understand if applicable;

• Prohibition of Retaliation and Unfair Treatment Prohibition of retaliation (such as by intimidation, threats, coercion, blacklisting, discharge or other discrimination) against employees who complained against violations, including through filing or participating in legal actions or seeking assistance from third parties;

• Prohibition of Third Party Fees Prohibition against passing on of fees associated with the H-2B applications or employment, such as application/petition costs, attorney fees, recruitment fees or other related fees (and employers must contractually prohibit agents and recruiters from seeking or receiving such fees from employees);

• Prohibition of Preferential Treatment Prohibition against treating H-2B workers more favorably than U.S. workers; discriminating in hiring based on race, color, national origin, age, sex, religion, disability or citizenship; and laying off U.S. workers within the 120-day period before the start date of work through the end of the period of certification;

• Non-discriminatory Hiring Practices The job opportunity must be open to any qualified U.S. worker regardless of race, color, national origin, age, sex, religion, disability or citizenship. Rejections of U.S. workers who apply must only be for lawful, job-related reasons;

• Recruitment Requirements Compliance with recruitment requirements under 20 CFR 655.40-.46;

• Continuing Requirement to Hire U.S. Workers Continue to consider and hire all qualified U.S. workers who apply for the job opportunity until 21 days before the start date of need;

• No Strike or Lockout There is no strike or lockout at any of the employer’s worksites within the area of intended employment for which the employer is requesting H-2B certification at the time the application is filed;

• No Recent or Future Layoffs The employer has not laid off and will not lay off any similarly employed U.S. worker in the occupation that is the subject of the H-2B application within the area of intended employment within the period beginning 120 calendar days before the date of need through the end of the period of certification. A layoff for lawful, job-related reasons such as lack of worker or the end of a season is permissible if all H-2B workers are laid off before any U.S. worker in corresponding Employment;

• Contact with Former U.S. Employees Contact by mail or other effective means its former U.S. workers, including those laid off within 120 calendar days before the date of need (except those dismissed for lawful reasons), employed by the employer in the occupation at the place of employment during the previous year, disclose the terms of the job order and solicit their return to the job;

• Area of Intended Employment Prohibition against placing workers into uncertified employment or geographic area; and using the H-2B program if there is a strike or lockout in the area of intended employment at the time of application;

• Notification of Abandonment/Termination Notify DOL when a worker abandons the job or is terminated for cause (and DHS if the person is an H-2B worker);

• Compliance with Applicable Laws Comply with all applicable Federal, State, and local employment-related laws; and

• Disclosure of Foreign Worker Recruitment Disclose the identity of all foreign labor recruiters and their employees as well as pertinent agreements related to the recruitment of foreign workers.

When to Begin Process

The timeline for the H-2B visa process can vary, but it is typically several months from start to finish. It is important to start the process as early as possible to ensure that the worker will be able to arrive in the United States in time for the start date of their employment. If the employer is looking to hire for the first half of the fiscal year for USCIS (October – March) it is best to begin the process by the prior March.  For the second half of the fiscal year for USCIS (April – September) it is best to start no later than the prior September.

Dependents

Spouses and unmarried children under 21 years of age may apply for the applicable derivative visa (H4 visa) to join their spouse or parent in the US. Accompanying spouses and children are entitled to study in the United States but are not entitled to undertake any employment without obtaining an appropriate work visa.

For more information, please reach out to us at (404) 890-0372 to speak with an experienced immigration lawyer.

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