2. ABCs of Immigration Law: H-2B Temporary Non-Agricultural Workers Visas
 

The H-2B program allows the entry of foreign workers into the United States on a temporary basis when qualified U.S. workers are not available and when the employment of those foreign workers will not adversely affect the wages and working conditions of similarly employed U.S. workers. The H-2B program is limited by law to a program cap of 66,000 visas per year.

On March 18, 2011 the Department of Labor published proposed changes to the H-2B temporary nonagricultural worker program in the Federal Register.  Though the new regulations have been delayed, their stated goal is to “ensure that U.S. workers receive the same level of protections and benefits as temporary foreign workers recruited under the H-2B program, and to provide better access for employers with legitimate labor needs.”  To accomplish its stated goals, the Department of Labor suggested a number of changes which include:

To streamline the process for employers:

·         The creation of an H-2B registration process that would allow employers to conduct labor market tests closer to their date of need before applying for a certification;

·         The elimination of job contractors as users of the program;

To improve U.S. workers’ access to jobs:

·         The creation of a national job registry for all H-2B job postings;

·         Requiring employers to provide documentation that they have taken appropriate steps to recruit U.S. workers;

·         Reinstating the role of state workforce agencies in providing expertise on local labor market conditions and recruitment patterns;

·         Increasing the amount of time during which U.S. workers must be recruited;

Additionally, the department proposes to extend H-2B program benefits to workers employed alongside those recruited under the H-2B program; require employers to pay transportation costs and other fees; and enhance enforcement by giving the department's Wage and Hour Division independent debarment authority.

What kinds of jobs qualify for H-2Bs?

For a foreign worker to be covered by an H-2B visa, the job the employer offers needs three essential criteria:

·The job and the employer’s need must be one time, seasonal, peak load or intermittent;

·The job must be for less than one year; and

·There must be no qualified and willing U.S. workers available for the job. 

When should an employer file for an H-2B visa?

The employer should file for H-2B status at least 60 days, but not more than 120 days before the worker is needed. 

What are the steps an employer must follow to obtain H-2B certification?

The employer must go through a seven step process to obtain an H-2B visa:

1. The employer files a completed Form ETA 750 in duplicate to the local State Workforce Agency (SWA) covering the area of proposed employment.

2. The SWA informs the employer on requirements for recruitment, wage options, and working conditions offered and refers qualified candidates to the employer for interviews. The employer will also be required to advertise the position to demonstrate a lack of availability of American citizen and permanent resident workers.

3. The employer creates a recruitment report summarizing the results of the effort, including names and addresses of applicants, and reasons for not hiring particular interviewees. The employer must demonstrate that there are no immediately available citizen or permanent resident workers willing to work at the prevailing wage (or the actual wage paid by the employer if higher).

4. After an evaluation, the SWA will forward the applications to the appropriate National Processing Center (NPC).

5. The NPC certifying officer (CO) will review the applications. The CO will grant certification if he/she finds that qualified persons in the U.S. are unavailable and that the employment terms will not adversely affect the wages and working conditions of workers in the U.S. similarly employed.

6. The certifications/denials are given to the employer, and used to support a visa petition filed with USCIS. The Labor Certification Determination and the form I-129 are submitted to the USCIS.

7. The foreign potential employee must apply for a visa at his or her respective U.S. Consulate. 

How long is an H-2B visa valid?

The length of stay on an H-2B visa will be granted in increments of up to a year depending on the anticipated length of the employment period.  The maximum period of stay in H-2B classification is three years.  The visa may be extended in one year increments for a total of three years, but USCIS will often deny extension requests because they question whether a job is really temporary. 

Who is eligible/ineligible for an H-2B visa?

Either skilled or unskilled workers may be employed on an H-2B visa. The visa is generally used for entertainers and athletes and who do not meet the requirements of the O and P visa categories. Recently, the H-2B visa has become very popular with professions in the hospitality industry.

The only workers specifically excluded are foreign medical graduates seeking to perform work in medical fields and agricultural workers. 

What documentation must an employer keep on an H-2B worker?

If the worker is self-employed:

·A contract between the employer and the worker specifying the wages and terms of employment

·A complete itinerary of the planned employment

If numerous employers are involved:

·The dates of the proposed employment

·The name and address of the employers

·List of locations where the work will be performed

How many H-2Bs are granted per year?

Up to 66,000 H-2Bs are granted each year with half reserved for jobs with start dates in the first half of the government fiscal year and the remainder reserved for the second half. The 66,000 limit does not apply to spouses and children and they may enter the US in H-4 status. H-2B workers are only counted against the cap in the first year of the H-2B petition and are not counted when returning for seasonal work or extensions.

What obligations does an employer have in an H-2B case?

The employer is required to pay the prevailing wage and if an employee is terminated early, the employer must pay return transportation costs home.

Can an employer substitute workers in an H-2B case?

Yes, but only if the petition was approved for unnamed beneficiaries, the petition was for a group or the job does not require education, teaching or experience. The substitutions can be made at a consulate.