H-2B Visas for Temporary Non-Agricultural Workers

landscape contractorThe H-2B visa permits US employers to bring foreign nationals to the United States for the purposes of filling temporary, non-agricultural jobs.  It is commonly used for occupations in the hospitality (hotels, ski resorts), retail, and service industries (landscape contractors).

Congress has set a numerical limit, or “cap” on the number of H-2B visas to be issued on an annual basis, currently set at 66,000 per fiscal year.  The cap is split into two parts: 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 – December 31). H-2B visas are valid for a period of 9 months.

Who May Qualify for H-2B Classification?

ski instructorTo qualify for H-2B nonimmigrant classification, the petitioner must establish that:

  • 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 need is considered temporary if it is a(n):
  • 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 need is considered temporary if it is a(n):

  1. One-time occurrence – A petitioner claiming a one-time occurrence must show that it has:
  • An employment situation that is otherwise permanent, but a temporary event of short duration has created the need for a temporary worker.
  • Not employed workers to perform the service or labor in the past, and will not need workers to perform the services or labor in the future;

OR

  1. hotelSeasonal need– A petitioner claiming a seasonal need must show that the service or labor for which it seeks workers is:
  • Traditionally tied to a season of the year by an event or pattern; and
  • Of a recurring nature.

Note: You cannot claim a seasonal need if the time period when you do NOT need the service or labor is:

  • Unpredictable;
  • Subject to change; or
  • Considered a vacation period for your permanent employees.

OR

  1. Peakload need – A petitioner claiming a peakload need must show that it:
  • Regularly employs permanent workers to perform the services or labor at the place of employment;
  • Needs to temporarily supplement its permanent staff at the place of employment due to a seasonal or short-term demand; and
  • The temporary additions to staff will not become part of the employer’s regular operation.

OR

  1. Intermittent need – A petitioner claiming an intermittent need must show that it:
  • Has not employed permanent or full-time workers to perform the services or labor; and
  • Occasionally or intermittently needs temporary workers to perform services or labor for short periods.

Once a company establishes that is qualifies for the H-2B visa and has the resources to support the application process, it should begin applications nine months ahead of time (by February for an October start date, or by July for an April start date in the following year.

TIMELINE OF EVENTS (starting 9 months before the intended work start date)

calendarThe application process has several steps that start well in advance of the intended job period.

  1. File Prevailing Wage Determination: 150 to 120 days before employment start date.
  2. File Labor Condition Application and Job Order with local State Workforce Agency: 90 days before employment start date.
  3. Perform required US-based recruitment: After certifying officer approves Labor Condition Application he or she will provide directions on how to perform the required recruitment.
  4. Submit H-2B petition application with United States Citizenship and Immigration Services (USCIS): Immediately after completion of recruitment steps and final certification of Labor Condition Application, submit I-129 application and supporting evidence to USCIS with Premium Processing (15 day review period).
  5. Employees apply for H-2B visas at US consulate abroad: Immediately after approval of H-2B visa petition, candidates submit their applications for an interview at the consulate.

To illustrate this timeline in further detail, the following deadlines relate to applications for the more popular April to December visa period.

  1. BEGIN RECRUITMENT PROCESS & CASE STRATEGY (July to November)

Once you decide to pursue the H-2B process, you should immediately begin creating a plan with attorney; selecting your internal team to liaise with the law firm, provide documents, and answer questions; and identify your recruitment team that will travel abroad and coordinate applications with the candidates.  It is recommended that the recruiter speak the local language and be familiar with local customs and communication styles.

The easiest way to start looking for candidates is to ask current employees to recommend vetted friends and family members in their home countries. The recruiter will then visit the target cities abroad and have meetings with candidates to explain the process and documentation requirements.  Over the next few months, the candidates will provide their documents to the company’s team, who can then organize the documents and upload them to a central document sharing system for the attorney to review.

  1. FILE PREVAILING WAGE DETERMINATION (by early November)

Next, you will need to determine the minimum wage requirements for each job site location by obtaining a Prevailing Wage Determination from the Department of Labor at least 60 days before filing a temporary Labor Certification Application on January 1. The Prevailing Wage Determination will list the minimum wage for which the petitioner must pay the temporary worker to qualify under the H-2B classification. The Employer files a Prevailing Wage determination for each Metropolitan Statistical Area (MSA) in which it intends to employ workers.  An MSA is a geographical region with a relatively high population density at its core and close economic ties throughout the area.

  1. STATEMENT OF NEED, LABOR CONDITION APPLICATION, AND JOB ORDER (January 1)

The Statement of Temporary Need is an employer’s chance to provide the Department of Labor with a persuasive argument why it needs a specific number of workers during the specified visa period, and is filed as an attachment to the Labor Condition Application and Job Order.  In this persuasive document, the Employer describes the company’s recruitment efforts and inability to fill the positions with US workers, upcoming contracts that necessitate the need for worker, job duties, trends in the industry, and company-specific statistics about its needs for workers. These documents will be filed online on January 1.

In June 2018, the Department of Labor instituted the “millisecond rule,” meaning that applications are reviewed on a first-come, first-served basis starting at midnight EST on New Year’s Eve, thus increasing the competitiveness of this application process.

  1. RECRUITMENT PROCESS (January to February)

recruitment lineOnce the employer receives a tentative LCA approval, it must begin its recruitment process to search for qualified US workers. Generally, ads are placed in the local newspaper with the largest circulation during a weekday and two Sundays, with the addition of postings on the company website, on job boards, and/or on state work force agency websites. After an approximately two-week recruitment process, the employer will evaluate candidates and file a recruitment report with the Department of Labor.

Last year, for the second half of FY 2018, the DOL distributed LCA decisions on February 20, 2018, and started receiving applications on February 21.  Due to demand, the cap filled by February 27, at which point USCIS stopped accepting applications.

During the first five business days USCIS received approximately 2,700 H-2B cap-subject petitions requesting approximately 47,000 workers, which is more than the number of H-2B visas available. As a result, USCIS, in accordance with applicable regulations, conducted a lottery on Feb. 28 to randomly select enough petitions to meet the cap. USCIS rejected and returned the petitions and associated filing fees to petitioners that were not selected, as well as any cap-subject petitions received after Feb. 27.

Accordingly, it is crucial to have the I-129 packets ready to mail to USCIS by the last week of February so that your application reaches the lottery. 

  1. FILE I-129 APPLICATION WITH USCIS (late February to early March)

After the Recruitment Report is processed, and the LCA is approved, the Employer must then file its I-129 application, along with supporting documentation about the company and its need for workers, with USCIS. Of note, the Employer will file an application for each job site area (MSA), including forms, corporate documents and other supporting evidence with USCIS.  Employers should elect to use Premium Processing, which means that for a fee, USCIS will provide a decision on the application within 15 calendar days.  As of this writing, filing fees are $1,410.00 for the Premium Processing Fee, $460 for the I-129 fee, and $150 for the Fraud Prevention and Detection Fee. Refer to the USCIS website for the latest fee requirements.

If the application survives the lottery and is approved, the next step is bringing the candidates to the United States. If an employer submits more than one application (one for each intended MSA/job site), it may receive one, none, or multiple approvals since each application will be adjudicated separately.

  1. CANDIDATE CONSULAR INTERVIEWS AND TRANSPORTATION TO THE U.S. JOB SITE (March to April)

consular interviewFor each approved application, the employer will now select from its list of potential candidates its top choice employees.  The employee will then file a DS-160 form with the Department of State and pay the filing fee (which the company reimburses).  Next, the employees will go to the consulate in their home country for an interview, and bring supporting biographical documentation ad proof of their ties to their home country (to prove their non-immigrant intent).

For the employees who are granted a visa, they will travel on their own from their point of origin to the job site (and be reimbursed for travel by the end of the first week of employment), or the employer will provide transportation to the job site (by bus for large groups from the border).  If an employee completes 50% or more of the job period, he/she will be entitled to return transportation to the original point of origin at the company’s expense.  Employees will generally not be permitted to enter the United States more than a week before the intended start date of employment.  Employees must return to their home countries at the conclusion of the visa period.

ARE YOU INTERESTED IN LEARNING MORE ABOUT THE H-2B PROGRAM?

Are you interested in applying for the H-2B visa? Schedule a call with us to determine whether you are eligible and to being the planning process.

About The Grady Firm, P.C.

JGrady Firm-Logo-2016The Grady Firm works with dynamic employers across the country to prepare successful employment-based applications.  Specially, we have prepared H-2B applications for ski resorts and landscape contractors. In addition, we help individuals, families, employees, business owners, and investors obtain non-immigrant and immigrant visas (B-1/B2, H-1B, H-2B, L-1A, L-1B, O-1, TN, E-2, E-3), as well and Green Cards and citizenship based on family relationships, investment, or employment.  The Grady Firm attorneys also help foreign entrepreneurs establish a U.S. presence, form a corporate entity, and obtain the appropriate visas for their owners and View More: http://elyanaphotography.pass.us/jenniferemployees.

The Grady Firm is a partner firm to the California Employers Association and California Landscape Contractors Association. Ms. Grady provides on-site training on the H-2B process, government site visit preparation, and sexual harassment training in English and Spanish.

Click here to schedule a complimentary 15-minute consultation with The Grady Firm’s attorneys; call +1 (323) 450-9010; or fill out a Contact Request Form.

This article is for informational purposes only, and does not constitute legal advice or create an attorney-client relationship. This article does not make any guarantees as to the outcome of a particular matter, as each matter has its own set of circumstances and must be evaluated individually by a licensed attorney.

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About gradyfirm

The Grady Firm, P.C. provides exceptional legal counsel to its clients as their dedicated Immigration, Global Relocation/Expansion, and Human Resources Department. We deliver superior customer service and holistic strategies tailored to each client’s background and goals. As a truly global practice, The Grady Firm attorneys provide the business, immigration, employment counseling that American companies need to thrive, and cultural background which foreign entrepreneurs need to be successful in a new market. Our tech-savvy, multi-lingual attorneys are fluent in Spanish, Italian, German, and Farsi. They are licensed in California, and can practice immigration and intellectual property in all 50 US states. The firm serves innovative clients from around the world from its offices in Beverly Hills, Irvine, and San Diego, California. Learn more about us at www.gradyfirm.com.

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