Legal Updates

Time Is Running Short To Plan For Summer Seasonal Hiring

With the first day of spring still ahead of us, summer may seem a long way off. For employers planning to use H-2B visas to supplement their summer workforce with temporary foreign workers, however, summer is not far off at all. Employers planning to file H-2B applications for summer employment need to act promptly to maximize their chances of obtaining work authorization for their intended H-2B employees.

Background

Employers can use the H-2B visa program to hire foreign workers from eligible countries in non-agricultural, temporary, full-time positions. While H-2B visas can be used for a variety of temporary circumstances (such as a one-time need, a peak-load need, or an intermittent labor shortage), they are commonly used for seasonal employment, making H-2B visas a vital part of the summer economy.

H-2B visas are subject to a quota of 66,000 visas per year. The visas are allotted twice each year, on October 1 and April 1, with 33,000 visas released on each of these dates and awarded until the quota is met. Employers can submit one application for multiple H-2B employees, so long as they are from the same country, traveling to the same consulate or embassy to process their visas, and being recruited for the same position. Under current regulations, an employer cannot begin recruiting potential H-2B employees until 120 days prior to the date of need.

Filing Process

Obtaining an H-2B visa is a multi-step process, involving both the U.S. Department of Labor (“DOL”) and U.S. Citizenship and Immigration Services (“USCIS”). First, the employer must obtain a prevailing wage determination from the DOL, which dictates the minimum wage that the employer must pay H-2B employees, based on the position and the geographic area.

Next, the employer must advertise the position by placing job advertisements in specific locations to ensure that there are no U.S. employees who are willing and able to perform the job. The job ads cannot be placed earlier than 120 days prior to the date of need. If no U.S. employees are found, the employer can then request a temporary DOL labor certification that no U.S. employees were available and that the employment of H-2B employees will not adversely affect the wage rate and working conditions of similarly employed U.S. employees.

If the DOL approves the temporary labor certification, the employer then may file a petition with USCIS. The petition should include a copy of the certified temporary labor certification, proof of the temporary nature of the employer’s needs, evidence demonstrating the number of H-2B employees needed, and documentation of the H-2B employees’ qualifications, if required. As part of the petition, the employer must make certain attestations, including that it will pay for return transportation costs if an H-2B employee is dismissed before the end of the visa period, that it will notify USCIS if an employee fails to appear or abandons work, and that the H-2B employees have not paid any fees to the employer in order to obtain employment.

Finally, once USCIS approves the petition, the H-2B employees, if abroad, must travel to an appropriate U.S. consulate or embassy to apply for their visas, which they will need to enter the U.S. and begin work.

Recommendations For Employers

Given the timeframes and filing requirements detailed above, many employers planning to hire foreign workers for the summer have already commenced the H-2B recruitment and filing process in order to claim a share of the 33,000 visas that will be released on April 1. Since it is not clear how long it will take for that semi-annual quota to be exhausted, employers that have not yet begun the H-2B process for summer employment would be wise to do so as soon as possible.

Thus, we recommend that employers considering the H-2B program to fill vacancies for summer employment do the following:

      • Compile and carefully review documentation relating to past and anticipated hiring needs, as such evidence will be needed to establish the employer’s need for seasonal workers;
      • Establish appropriate policies and protocols to ensure compliance with all H-2B program requirements. Strict compliance with the H-2B regulations is essential, as post-adjudication audits are common, and failure to comply can set an employer up for hefty fines or even debarment from the program;
      • Start the application process at the appropriate time, considering the annual quota, date of need, pre-filing steps, and processing time; and
      • Contact experienced immigration counsel for assistance with the H-2B application process.

*****

Although the H-2B program can seem like a daunting process, it can be a valuable resource for employers that require additional workers for the summer. If you have any questions or would like assistance with an H-2B application or any other immigration-related matter, we would be happy to help.