Common Pitfalls for Employers Hiring H-2B Visa Holders

Use these links to jump to different sections:

• Five Common Missteps for H-2B Employers
• Political and Legal Disputes Over the H-2B Visa Program
• Find an Experienced Immigration Law Attorney

Immigration law is subject to the political decisions of the U.S. President or Congress at any time. While many employers look for foreign labor to fill positions, many politicians claim legal immigration policy is harming the country and American workers. These two forces can greatly impact employers of foreign workers. Employers participating in the H-2B visa program must get current on immigration policy and know how it will be enforced on them and their workers.

“What we know is that the government is increasing enforcement, as well as reviews of whether employers are really following the process,” says Rick Gump, an immigration attorney in Texas. “We’re seeing that across the board—in H-2Bs and H-1Bs and L [visas], just to make sure employers aren’t cheating.”

Five Common Missteps for H-2B Employers

Gump sees enforcement issues for U.S. employers in several areas of the H-2B nonimmigrant work visa process. He says there are some common missteps that he sees in his practice. First and foremost, he says, you must ensure the person is admissible. You want to know who you are recruiting.

Second, he says, pay attention to the rate of pay. The law requires employers to pay the higher of either the prevailing wage—the wage rate based on similar positions locally—or the federal or state minimum wage. For example, you can’t simply list a range of pay on the application for prevailing wage determination and H-2B application for temporary labor certification. “You can’t do that,” Gump says. “You’ve got to offer whatever the highest rate is.”

Third, one of the most common areas for dispute between employers and the U.S. Department of Labor is the basis for temporary need of the foreign worker. The law requires employers to demonstrate a temporary need that’s either seasonal, peak-load-related, or a one-time occurrence.

A fourth pitfall for employers is the recruitment process. “Handle your recruitment properly,” warns Gump. Employers must draft and submit documentation of their recruitment efforts, showing the intermittent need to go outside the country to fill the temporary jobs.

Fifth and finally, explains Gump, just providing the evidence for your claim is key. “If [the company] is showing higher sales and a predictable pattern, and that’s what you are basing your [temporary need] on, you need the data to show that. You need to show that that’s what’s happening—that you have much higher sales within that particular time frame.”

Political and Legal Disputes Over the H-2B Visa Program

Besides common issues with the H-2B visa process, the H-2B visa is often the subject of political disputes or lawsuits. Some have challenged whether employers have an actual need for temporary foreign workers or are simply undercutting—and potentially discriminating against—U.S. workers and the labor market. “There have been some lawsuits in the past where U.S. citizens have said, ‘Hey, we were available for the job,’” says Gump. Additionally, some U.S. companies have been knocked for violations that potentially displaced U.S. workers.

Find an Experienced Immigration Law Attorney

With the combination of government policy limiting legal immigration, and stricter enforcement of employer’s petitions for H-2B workers, employers of temporary work need advice from an experienced immigration attorney now more than ever.

For more information on this area of law, see our immigration overview.