What is the H-2B program?
Our business immigration lawyers in Miami, Florida USA assist businesses with applying for the H-2B visa program for the USA for their employees. The H-2B visa program is designed to help U.S. employers that encounter difficulties hiring due to shortages of U.S. workers that are willing and able to perform nonagricultural labor. The program allows employers to fill positions for nonagricultural labor by hiring employees from abroad on a temporary basis. The H2B visa is typically used by labor-intensive industries such as hospitality, construction, retail, and warehousing. The most frequently filled positions via the H-2B program are that of a landscaper, laborer, cook, hotel housekeeper, and construction worker.
What temporary needs can H-2B workers fill?
The positions filled by employees hired under the H2B visa program have to be temporary in nature and serve one of the following purposes as defined by the DOL:
- One-time occurrence is for the purpose of filling a position that the employer has never employed workers for in the past, nor will need to do that again in the future. Some examples of approved H-2B visas for this category include: (1) a production manager for a new technology being introduced to U.S. operations was approved for a one-time occurrence where his duties involved setting up and training personnel, rather than managing on an ongoing basis, (2) an artisan was granted H-2B status to continue to engrave and install religious artifacts in a temple being built by the petitioner or (3) 15 electricians were permitted to fulfill the petitioner’s contractual obligation.
- The seasonal need could be used to staff establishments during peak season, such as hotels during tourist season. The seasonal need cannot be used if the need is unpredictable, subject to change or because the employer’s permanent employees have taken a vacation. Some examples of approved H-2B visas for this category include (1) dining staff and servers at California and New Jersey resorts for the summer season, (2) ski instructors for ski resorts in the Rocky Mountains, or (3) summer lifeguards in the coastal regions.
- Peakload need is used to supplement an otherwise permanent workforce due to seasonal or temporary pick-up in demand under the condition that the temporary hires will not become part of the employer’s regular operation. An H-2B for peak load need is appropriate if, for example, a toy manufacturing company makes a product that has suddenly surpassed all sales predictions and expectations. In this case, the company may be able to demonstrate that it has a peakload need for assembly-line workers to meet its unprecedented production demands for the Christmas season. Another example for peakload need in the H-2B visa category is a trucking company that is experiencing an increased demand for commercial truck drivers due to surging customer demand as it was the case during the COVID-19 (Coronavirus) pandemic.
- Intermittent need is for employers who have not employed permanent or full-time employees in the past to perform a certain job but occasionally or intermittently need temporary workers to perform it. An example of a successful H-2B visa petition in this category is a sports jersey manufacturer that has a need for apparel workers when recurrent surges in production occur around major sporting events (such as the Super Bowl). Some other successful examples of H-2B visa include a petition on behalf of a foreign national actor, whose services were needed to reshoot movie scenes that had been previously filmed, or an H-2B visa petition for foreign nationals who needed to “participate in musical performances” with a nonprofit educational organization.
It will in most cases be inappropriate to temporarily fill permanent positions, such as university chairs, professors, or lecturers, with H-2B workers, although an H-2B job opportunity may be professional, skilled, or unskilled. Similarly, H-2B classification is unavailable for foreign nationals employed on board cruises to nowhere, to conduct gambling in waters outside U.S. and foreign territory, as this activity is prohibited by U.S. law and therefore there is no U.S. labor market.
What is the process to bring workers on H2B visa?
To hire workers under the H2B program an employer must first obtain a temporary labor certification from the U.S. Department of Labor (DOL) which sets wages requirements and makes sure U.S. workers are not displaced by the incoming foreign employees. After that, the employer sends a petition to the U.S. Citizenship and Immigration Services to approve a certain number of foreign workers; one petition can be submitted for up to 25 named workers. Upon approval, the foreign workers will be able to go to their local U.S. consulate and obtain H2B visas. Alternatively, the workers can change status to H-2B while in the United States.
The first step in the H-2B process is to request a prevailing wage determination with the U.S. Department of Labor. The DOL uses data obtained by the U.S. Bureau of Labor Statistics and other sources in order to determine the prevailing wage for a specified geographic area for the requested occupation. That means the H-2B cannot be used to cut costs by hiring foreign and low-price workers since the Department of Labor takes effective steps to ensure that the employer does not pay wages that are lower than the prevailing wage for a given occupation in the geographic area of employment.
The H-2B program also establishes certain recruitment and displacement standards in order to protect U.S. workers. That includes requirements to advertise for the H-2B position under DOL guidance before the position can become available to foreign workers. Therefore, the H-2B is not a cost-cutting instrument but rather an instrument to address temporary or seasonal labor shortages. It is especially helpful to employers who if unable to hire foreign workers might have to discontinue services, cut capacity or not be able to operate their establishment at all due to a lack of U.S. workers.
After the prevailing wage determination and concurrently submitting the job order, the employer or its agent submits the final application for temporary labor certification. If the labor certification is approved by the Department of Labor, the employer can submit a petition with USCIS and ask for a certain number of foreign workers to be admitted to the US. Moreover, the employer must complete the recruitment of U.S. workers within 14 calendar days of when the Notice of Acceptance of the labor certification application is issued. However, the employer must accept referrals and applications of all U.S. applicants until 21 days before the employer’s start date of need.
A single petition with USCIS can be filled for up to 25 workers given the job duties and position are the same. Also, the petition does not need to specify the names of the workers, and the employer can actively recruit abroad or make last-minute changes to the list of employees. However, the workers have to be from a list of countries approved by the U.S. Department of State.
Upon approval of the petition by USCIS, the selected H-2B workers have to schedule an interview with the corresponding U.S. consulate for their country of residence and obtain a valid visa stamp; or change status to H-2B if they are in the United States. Canadian citizens can skip the visa interview process and show directly at a port of entry and present their documents directly to a CBP officer.
How many H-2B visas are available each year?
The H-2B program has a limit of how many workers can come to the U.S. on this visa. Currently, H-2B limit or “cap” is set at 66,000 per fiscal year, with 33,000 for workers who begin employment in the first half of any fiscal year (Oct. 1 – March 31) and 33,000 for workers who begin employment in the second half of any fiscal year (April 1 – Sept. 30). In unusually busy years the U.S. government can increase the number of available H-2B visas as it did for the 2nd half of the fiscal year 2021 by adding an additional 22,000 visas. However, these supplemental visas are only available to businesses that will likely suffer irreparable damage without the ability to employ all the H-2B workers requested in their petition. Workers who will be employed as fish roe processors, fish roe technicians, or fish roe processing supervisors as well as workers going to the Northern Mariana Islands or Guam are exempt from the “cap”.
How long can H-2B workers stay in the US?
The initial approval period for the H2B is between 9 and 12 months and the visa can be renewed in 1-year increments for a total of 3 years. Each 1-year renewal requires a new and valid temporary labor certification covering the requested time. A worker who has held H-2B status or held an L or H status for the maximum allowed time of 3 years must depart and remain outside the U.S. for 3 months before being able to come back as a H-2B worker.
Despite its complexity and annual limits on the number of visas available, the H-2B program is highly valuable as it allows U.S. employers to address temporary labor needs by hiring foreign workers. The process includes a number of safeguards that ensure wages for U.S. workers are not adversely impacted and that they are not replaced by foreign counterparts. On the positive side, H-2B is very useful when high demand, seasonal or peak, cannot be met by hiring only U.S. employees.
How can Malescu Law assist?
If you are an employer interested in the H-2B visa program and seeking to bring workers from outside the U.S., contact us, your experienced business and employment immigration attorney in Miami, Florida USA to assist you with what is the H-2B visa program and the application process.
Malescu Law P.A. – Immigration Lawyers