H-2B, H-2A Visas for Temporary Workers

This Memorandum outlines the process by which a U.S. employer can obtain temporary foreign workers through the H-2B visa process. The H-2B process allows companies to supplement their U.S. workforce if the company is able to certify:

  • There are not enough U.S. workers who are able, willing, qualified, and available to do the temporary work.
  • Employing H-2B workers will not adversely affect the wages and working conditions of similarly employed U.S. workers.
  • Its need for the prospective worker’s services or labor is temporary, regardless of whether the underlying job can be described as temporary.

The employer’s temporary need must be classified as one of the following: (1) a one-time need, meaning the company does not anticipate employing workers in this position again in the future; (2) a seasonal need, meaning the company only employs workers in the particular position during certain months of the year which correspond with a particular season (landscaping companies are a common “seasonal” employer); or (3) a peak load need, meaning the company employs workers in the particular position year round, but during certain months the need is increased, requiring additional workers (hotels and restaurants in tourist areas are common “peak load” employers).

There is a statutory numerical limit, or “cap,” on the number of foreign nationals who may be issued an H-2B visa or otherwise granted H-2B status during a fiscal year. 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 of this cap, it is extremely important that employers abide by a timeline to complete the process and obtain the foreign workers before the cap is met.

The maximum length of a “season” for most H-2B purposes is ten months. For example, if the employer’s H-2B need begins in March, it must end in December. H-2B workers could be admitted to the U.S. for employment for this period of time, assuming the employer is able to document this annual need. To establish its need, the employer would submit these types of documentation:

  • Payroll records for the prior two years showing an increased number of workers during the requested months;
  • Sales records for the prior two years showing an increase in income during the requested months;
  • Letter from the area chamber of commerce or industry representatives describing the temporary need; and
  • Similar types of evidence explaining why the company or industry has a recurring temporary need.

The process for obtaining workers through the H-2B process is:

  1. The employer submits a Prevailing Wage Determination application. This application is submitted electronically to the Department of Labor (“DOL”). After reviewing this application, DOL will assign a “prevailing wage” for the position, which is the wage the employer is required to pay the H-2B workers. DOL takes approximately one month to adjudicate this application.
  2. Employer submits a Job Order to the state workforce agency. The Job Order notifies U.S. workers of the job opportunity, and invites them to apply for the positions. The state workforce agency will cause the Job Order to be posted in both a state and a national job registry.
  3. At the same time the Job Order is submitted to the state workforce agency, an Application for Temporary Labor Certification is submitted electronically to DOL. This application describes the job opportunity and temporary need, and must include supporting documentation.
  4. Within 14 days after DOL has accepted the Application for Temporary Labor Certification, two newspaper advertisements must be placed, one of which must be on a Sunday. The purpose of the newspaper advertisements is to notify U.S. workers of the job opportunity, and invite them to apply for the positions.
  5. The employer must contact U.S. workers who were employed in the position at the place of employment during the previous year (except those who were dismissed for cause or who abandoned the job), inform them of the job opportunity, and ask if they wish to return to the position.
  6. A notice of the job opportunity must be posted at the worksite, in at least two conspicuous locations, and remain for at least 15 consecutive business days.
  7. The employer must accept applications for the job opportunity submitted by U.S. workers, and interview such applicants. The number of H-2B workers approved by DOL will be reduced by the number of qualified U.S. workers identified during the hiring process.
  8. Submit a Recruitment Report to DOL, describing the recruitment efforts and recruitment results. DOL will review this Report, and certify the previously filed Application for Temporary Labor Certification for the approved number of workers.
  9. Submit an I-129 Petition for Nonimmigrant Workers with United States Citizenship and Immigration Services (USCIS). This petition must include a variety of documentation to prove the employer is a bona fide operating entity, has a legitimate need for temporary workers, complied with the recruitment requirements, and the proposed workers meet all minimum requirements for the job opportunity. USCIS takes approximately 15 days to process this petition.
  10. The workers submit applications for the H-2B visas to a U.S. embassy abroad, and then enter the U.S. to begin employment.

An employer obtaining workers through the H-2B process must be responsible for certain costs associated with that process. In addition to paying for the costs of filing the petition with USCIS (currently $1,835 per position, regardless of the number of H-2B workers sought) and for the attorneys’ fees, recent regulations also require the following:

  • The employer must pay all costs of transportation to the place of employment for each H-2B worker, including daily subsistence and lodging, if necessary. If the worker initially pays this cost, the employer must reimburse the worker after the worker completes 50% of the period covered by the job order. The employer must also pay for the costs of return transportation if the worker completes the employment period, or is dismissed early.
  • The employer must pay (or reimburse the worker within one week) for all costs associated with the worker attaining the H-2B visa.
  • If the employer provides daily transportation to the worksite, and deducts the cost of such transportation from the worker’s wages, this deduction must be disclosed in the recruitment.

SAMPLE TIMELINE

Below is a sample timeline that may be followed in obtaining H-2B workers for a ten month season, assuming a start date of March 15. Times are approximate as the response time of the government cannot be guaranteed.

September 1 – Finalize number of workers needed and begin to draft ad requirements.

September 15 – File request for prevailing wage determination.

November 15 – Submit Form ETA 9141 Application for Temporary Labor Certification electronically to DOL. DOL will review the application and notify the employer of any deficiencies within seven business days.

November 15 – Submit job order to the state workforce agency.

November 27 and 28 [dates would be adjusted to include one Sunday] – Run ads in newspaper.

November 28 – Post notice to workers at two conspicuous locations at the worksite.

November 28 – Begin to contact former U.S. workers and advise them of the job opportunity.

December 12 – Prepare and sign recruitment report certifying number of U.S. workers identified and hired.

January 2 – Submit I-129 Petitions for H-2B Visas.

January 30 – Workers submit individual visa applications to the U.S. Embassy.

 


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