H-2B Visa Summary:

 

H-2B Visa Summary: 

**Please note this is only a summary designed to give you an over view of the H-2B Program.  The rules and regulations are extensive and complex and this summary does not encompass all of the rules regulating the program:

 

The H-2B Visa Program

This program allows for nonagricultural workers to be sponsored by an employer for a nonimmigrant H-2B visa for the purpose of fulfilling a seasonal, peak-load, one-time occurrence or intermittent need of a U.S. employer.

Requirements for H-2B status:

1.      Must fulfill a temporary, full-time, nonagricultural job.

2.      May be skilled, unskilled or professional

 

3.      Employer must show through advertising and placement with the State Employment Agency that there are not sufficient U.S. workers able, willing and qualified for the temporary work.

 

4.      Employer must show that the H-2B employee will not adversely affect the wages and working conditions of similarly employed U.S. workers.

 

5.      Visas are capped at 66,000 per year with 33,000 being available from October 1st until April 1st and additional 33,000 being available from April 1st to September 30th each year.  Unused visa roll over from the 1st half of the year to the 2nd if available.

 

6.      Workers must be nationals of designated countries.  If they are not from a designated country, then evidence that the needed skills are not available in the designated countries must be provided.

 

7.      The seasonal need standard is the easiest to qualify for.  (Examples:  landscapers, ski instructors, resort workers (where resort is only open during a certain season), life guards.

 

8.      Peak-Load need involves operation beyond a business’ normal capacity.  A good example of this is businesses which require the addition of a 3rd shift.  The Department of Labor will want proof that the need is additional to the permanent staff rather than a quick fix to a long lasting problem.  Employers will need to show a spike in business and sales.  The Department of Labor will look to the business’ financial sales records, insurance records and employment records for past years to determine if the need is temporary.

 

9.      The One-Time need is available for acts of God or events that occurs more than two years apart.  Examples of this are Hurricanes, Floods, the Olympics etc…

 

10.  Intermittent need is an occasional or short-term temporary employment need for employer who do not usually hire permanent, full-time employees for the job being performed.  Examples of this are pipe fitters that support permanent welders.

 

11.  Both season and peak-load needs must be shorter than 10 months. 

 

 

Recruitment and the Department of Labor Process:

1.      A prevailing wage must be obtained from the Department of Labor before any advertising can start.   This wage may take 4-6 weeks to process.

2.      A job order (advertisement) must be placed at the State Workforce Agency serving the area of intended employment.  This can be placed no more than 120 days before the date of need for the workers.

3.      Two print ads must be published during the time the job order with the State Workforce Agency is open.   One of these ads must be published on a Sunday.

4.      If the employer is party to a Collective Bargaining Agreement then contact the local union as a recruitment source for able, willing, qualified and available U.S. workers.

5.      All potentially qualified applicants must be contacted and interviewed.  Applicants can only be rejected for lawful job-related reasons.

6.      A recruitment reports listing all applicants and reason for rejection or hire including documentation of contacting the applicants and interview.

7.      An online application with the Department of Labor is filed and all documents including the recruitment report and evidence of temporary need are submitted by uploading the documents to the filing.

8.      If the Department of Labor chooses they can audit the application and conduct supervised recruitment.

9.      The Department of Labor can debar any employer from the H-2B program if the employer has violated a material term or condition of its H-2B application. 

10.  The employer must pay the cost of the advertising for the temporary labor certification.

Filing of I-129 H-2B Nonimmigrant Visa application:

1.       I-129 H-2 B applications for H-2B nonimmigrant status. The USCIS fee for the I-129 H-2B petition is $325.00 for each petition (more than one foreign worker can be included in the I-129 form as long as certain conditions are met).  Additionally, there is a $150.00 USCIS fee for fraud prevention that must be paid with each I-129 H-2B form. 

2.      One 129 H petition can be used for all position and overseas workers as long as workers are performing the same services in the same location, the number of H-2B workers does not exceed the number of positions available, and the petition is requesting the same action and embassy.

3.      Premium processing is available and suggested to be used.  The cost is $1,225.00 for premium processing.  Under this program the USCIS will approve, deny or request additional evidence within 15 business days.

4.      The petition have with it the following:

a.       A copy of the approved temporary labor certification from the Department of Labor.

b.      I-129 H-2B petition or petitions.

c.       An employer support letter describing the nature of the business, the duties of the job, the nature of the need for the employer, and the qualifications of the workers.

d.      Documentation establishing the need of temporary workers for the employer including sales records, insurance records, and payroll records.

Filing for and procedure for interview of workers at the U.S. embassy in their country:

1.      DS-160 must be filed on line for each prospective employee receiving a visa.   This forms is lengthy and requires quite a bit of personal information which must be provided by the foreign worker.

2.      Fees for the nonimmigrant visa must be paid to the embassy before an appointment can be scheduled.  Embassy fees depend on which embassy is the one processing the case but are usually around $131.00 per foreign worker.

3.      Usually foreign workers must be able to go online to file the form after we have checked it, pay the fees and schedule the interview. 

4.      Embassy officers will look for previous immigration violations, any criminal records anywhere in the world, any information regarding previous denials, and whether or not the foreign worker is likely to return to his country when his work is complete.   To determine the risk that the foreign worker will remain in the U.S. after the work is complete the embassy officer looks to the person’s family ties and financial ties to their home country as well as to their honesty.  

Employer Obligations and Compliance:  Employers must retain the following documentation for 3 years after approved for H-2B.

1.      Prevailing wage determination

2.      Advertisement and recruitment efforts including tear sheets, ads, resumes, applications for employment and evidence that applicants were contacted and interviewed.

3.      Documentation that all appropriate unions were contacted.

4.      Documentation that laid-off workers were notified of the job opportunity.

5.      Recruitment report

6.      Documentation which shows the employer’s temporary need in one of the 4 categories.

7.      H-2B employers must notify USCIS within 2 working days if an H-2B worker is:

a.       A “No Show” meaning an employee who fails to report to work within 5 working days of the employment start date.

b.      Absconder meaning an employee who fails to report for work for 5 consecutive workdays without the employer’s consent.

c.       Termination means an employee that is terminated or fired.

d.      Early Completion means an employee who completes work more than 30 days early.

Legal fees: 

On a case such as this legal fees depend on the number of foreign workers being petitioned for and the time frame before the petitions must be filed. Also, the difficulty in proofing the temporary need of each company’s case must be factored in, therefore, I will have to quote each individual case a legal fee based on these factors.

 

The legal fees do not include:  U.S. Citizenship and Immigration Services filing fees, Department of State filing fees, mailing costs, fees for evaluations and experts to evaluate degrees, transcripts or work experience and Department of State fees for visa processing, Department of Labor advertising costs.   All of the forgoing is additional costs in the case.  Any additional issues that arise outside of normal processing of each petition will be billed at an hourly rate $275.00. 

 

 

**This is only an outline of the issues involved in the H-2B nonimmigrant visa category.  This document does not address all of the issues or documents involved in a complex employment immigration case. Please feel free make an appointment to discuss further with us the options available to you in your specific case.

 

14207 Ford Road ,
Dearborn, Michigan 48126, 
United States
Phone:  313-846-1900
Fax:  313-846-1910
Email:  rdagher@dgdlegal.com

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