What is the Process for Hiring H-2B Workers?

It has strict requirements, but it could be a solution for Texas employers struggling to find workers

By Doug Mentes, Esq.

The H-2B non-immigrant visa program allows employers to hire foreign workers to come to the U.S. and perform temporary, non-agricultural work. Sixty-six thousand H-2B visas are available each year—divided between two seasons—with 33,000 available in each season. The start dates for each season are based on the government fiscal year. The early season start dates begin in October and go through March. The second season will include start dates from April through November. If employers don’t take up the full cap of 33,000 visas in the early season, those unfilled spots can be carried over to the later season. The cap is sometimes increased, as it was in 2018, with 15,000 more H-2B visas made available by United States Citizenship and Immigration Services (USCIS).

Rick Gump has practiced law in Texas for 45 years, much of it in immigration, and when it comes to the H-2B process for employers, he says, “You need to start planning at least six months before you want somebody to start because there is just a lot of work to be done.”

Where do employers start?

“The starting point is to identify the type of need that you are going to have,” Gump adds.

To qualify for a H-2B visa, the employer needs to show a temporary need for the foreign help, and that need must be based on either:

  • Seasonal need—work traditionally tied to a season by an event or pattern and of a recurring nature
  • One-time occurrence—a temporary event of short duration where hasn’t employed workers in the past for the service and will not in the future
  • Peak load basis—need to temporarily supplement staff due to seasonal or short-term demand
  • Intermittent basis—occasionally needs temporary workers to perform services or labor for short periods

“If an employer is unable to provide evidence that the need is temporary based on one of those four issues and identify the numbers of people you are likely to need, then it’s going to end up getting denied,” Gump says.

If an employer evaluates their situation and feels they are at a level of need requiring foreign workers to stay afloat, they should begin the process, which starts with temporary labor certification.

What is the temporary labor certification process?

Gump says the labor certification process is a test to see if there is a U.S. citizen for the position. An employer must “demonstrate their need and go through the recruitment that is required—and you’ve got to follow that [recruitment] strictly because [the government] can come and audit you any time before or after you get the visa,” he says.

“The goal of labor certification is to ensure you are not preventing a U.S. citizen from getting the job.”

An employer begins the labor certification process by filing an Application for Prevailing Wage Determination with the Department of Labor (DOL) and the local state workforce agency (SWA). That will determine a fair wage for the position based on what similar positions in the local area pay. Once a wage is issued, the employer posts a job order and files an Application for Temporary Employment Certification. At this point, the employer is required by the DOL to recruit U.S. workers for the position. Soon after, the employer should receive labor certification, enabling them to move forward with the Petition for Nonimmigrant Worker. The visa applicant must go through their own separate process at their local U.S. consulate office to gain admission.

The maximum length of stay for seasonal workers is nine months, at which point the visa holder must leave the country for three months before they can return. Employers can bring back the same workers each season, assuming their application is successful each season. If the visa holder is approved for a one-time occurrence need for the employer, the length of stay can be extended to three years.

Current need for attorney advice

Employers face a strict, somewhat complicated process when attempting to hire workers through the H-2B visa program. Now that process may be even more difficult for employers.

“What we know is the government is increasing enforcement as well as reviews of whether employers are really following the process—just to make sure employers aren’t cheating,” Gump says.

Now, more than ever, it is important that employers contact an experienced Texas immigration attorney if considering the H-2B program.

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