31. United States Government Accountability Office (GAO), H-2A and H-2B Visa Programs: Increased Protections Needed for Foreign Workers, March 2015. This information will be available in September 2021. The employer must notify DOL if any H-2B or corresponding worker separates from the job for any reason before the end of the job order. This document is intended only to provide clarity to the public regarding existing requirements under the law or agency policies. H 2B workers must be paid at least every two weeks or according to the prevailing practice. The job opportunity must be legitimate, full-time, and for a temporary position of at least 35 hours per workweek. U.S. Department of Labor | 200 Constitution Ave NW, Washington, DC 20210, H-2B Certification for Temporary Non-Agricultural Work, Foreign Labor Application Gateway (FLAG) System, H-2A and H-2B Electronic Filing Resources, Training and Employment Guidance Letter 31-05, Procedures for Temporary Labor Certification in the Entertainment Industry Under the H-2B Visa Program, Training and Employment Guidance Letter 27-06, Special Guidelines for Processing H-2B Temporary Labor Certification in Tree Planting and Related Reforestation Occupations, http://www.foreignlaborcert.doleta.gov/h2ah2b_icert_rollout.cfm, The Department of Labor's news release discussing the two regulations may be accessed, The 2015 Temporary Non-Agricultural Employment of H-2B Aliens in the United States, Interim Final Rule is available, The 2015 Wage Methodology for the Temporary Non-Agricultural employment H-2B Program, Final Rule is available. If your spouse and children will be accompanying you, documents showing the family relationship, such as birth and marriage certificates. And while this may seem like a promising prospect following the recent catastrophic damage inflicted on the economy, theres just one problem, Read More Manufacturers Mitigating the Labor Shortage: Alternative Hiring Solutions for U.S. FactoriesContinue, I have spoken with many of you regarding different strategies for beating the H2B cap next season. H-2B workers located abroad must receive the job order no later than when they apply for a visa. As part of that process, an employer must also establish that it has a temporary, rather than, permanent need for workers. Newsletter In practice that means that if an H-2B worker is fired, he or she becomes instantly deportable. Program Process Step 1: Determine Eligibility To Participate in the H-2B program, an employer must be a bona fide U.S. employer with possession of a valid Federal Employer Identification Number (FEIN), physically located in the United States and needs to have the means to be contacted for employment The employer's job opportunities must be: Considered a vacation period for the employer's permanent employees. The wage equals or exceeds the highest federal minimum wage or prevailing wage, local minimum wage, the normal rate paid or state minimum wage for periods specified in the job order. U.S. Department of Labor and U.S. Department of Homeland Security, Temporary Non-Agricultural Employment of H-2B Aliens in the United States, 80 Fed. Program on Race, Ethnicity, and the Economy, Economic Analysis and Research Network (EARN). .usa-footer .container {max-width:1440px!important;} It could also mean that they perform substantially the same job duties as H-2B employed workers. Or if you're from Canada, you can head straight to the U.S. border with the documents described below. If the Chicago NPC determines that the employer has made all the necessary attestations and assurances, but the application fails to comply with one or more criteria for certification an RFI will be issued to the employer within 7 calendar days of receipt of the application and will send by means ensuring next-day delivery. employer's behalf and meals) from the worker's home to the place of employment H-2B workers must be provided or reimbursed for all visa, border-crossing, and visa-related fees in the first workweek of employment Upon completion of the job order or if dismissed early for any reason, to be provided or paid for There was a problem with the submission. The interim final rule published by the Department of Labor offers the general employment requirements, which can also be found on the Wage and Hour Division Website, under the Interim final rule. With H 2B classification, you can onboard temporary workers to the United States to fill positions in landscaping, manufacturing, forestry, retail and food packaging through the United States Citizenship and Immigration Services. PDF H-2A and H-2B Visas - USCIS The data hub is part of our continued effort to increase transparency in employment-based visa programs, and allows the public to search for H-2B petitioners by cap fiscal year (back to FY 2015), employer (petitioner) name, city, state, ZIP code, worksite state, cap type, North American Industry Classification System code, and Standard Occupational Classification code. Whats the recent history of the returning worker exemption? .cd-main-content p, blockquote {margin-bottom:1em;} The Economic Policy Institute staff is unionized with the Reg. Incredibly, migrant workers in the H-2B and H-2A (for jobs in agriculture) visa programs on average earn approximately the same wages as undocumented workers.22 That means H-2B guestworkers earn no wage premium for having a legal immigration status. Why did my competitors get their H-2B workers but I didnt? #Are H 2B workers and workers in Corresponding employment covered by Federal Wage Requirements? Wanted: Foreign Workers And the Labor Brokers Accused of Illegally Profiting from Them, Jury Awards Guestworkers Over $14 Million in Landmark Human Trafficking, Forced Labor Case, Program on Race, Ethnicity, and the Economy PREE, Economic Analysis and Research Network EARN. For more on this topic, including a complete list of required recruiting activities, see "Fact Sheet #. Additionally, a cap of 66,000 visas per fiscal year (allocated between the first and second halves of the fiscal year) for 2021 means that the . To hire foreign workers, employers must seek labor certification through the U.S. Department of Labor ( DOL) and petition the U.S. When workers do find out, they are discouraged from applying. Within 14 days of receiving the notice of acceptance, the employer must now recruit foreign workers according to its provisions. I have tried other Visa services, but VisaPro is the best by far. In which occupations are H-2B workers employed? The wage requirement in condition 2, above, will not be met where unauthorized deductions, deposits, rebates, or refunds reduce the wage payment below the offered wage or where the worker "kicks back" any part of the wages to the employer or another person for the employer's benefit. This publication is for general information and is not to be considered in the same light as official statements of position contained in the regulations. Advertisements must be placed during the period of time the job order is active. Daniel Costa, The H-2B Temporary Foreign Worker Program: For Labor Shortages or Cheap, Temporary Labor?, Economic Policy Institute report, January 19, 2016. The employer must retain all documents pertaining to the Application and Registration, the recruitment-related documents, the payroll records, and related documents for 3 years. Form I-9 Guidance for H-2B Workers Seeking to Change Employers. The employer must include in the job order any minimum productivity standard which the workers must meet in order to retain the job. 2. Secondly, that the employment of H-2B workers will not adversely affect the wages and working . Board of Directors The employer must choose only one method of submission. .h1 {font-family:'Merriweather';font-weight:700;} A spouse and unmarried children (under 21 years of age) of an H-2B worker may seek an H-4 nonimmigrant visa, but employers are not responsible for the travel or housing costs of family members. 8 U.S.C. In 2015, the H-2B visa program was effectively doubled through a provision (the returning worker exemption) introduced during the appropriations process. For example, it added 64,716 H-2B worker visas for fiscal year 2023, to be allotted in two six-month periods. The H-2A visa program is a program that allows U.S. employers or U.S. agents who meet specific regulatory, Read More Why the Heck you Should be Using the H-2A Agricultural Visa ProgramContinue, 2023 Wyngaard Law - WordPress Theme by Kadence WP, Manufacturers Mitigating the Labor Shortage: Alternative Hiring Solutions for U.S. Factories. Do you want to hire foreign workers for a temporary occupation in less than a year for your nonagricultural business, and are you still unsure how to bring them to the U.S.? An approved petition is required to apply for a work visa. It is important that the recent expansion of this exploitative program not be continued in fiscal year 2017 and beyondand that Congress allow regulations providing rights and higher wages to both guestworkers and U.S. workers to be fully implemented. With the exception of a one-time occurrence need that could last up to three (3) years, temporary need will not be approved for longer than 10 months. The employer must specify any minimum productivity standards workers must meet to retain employment. Before requesting H-2B classification from the U.S. There is no doubt that this has occurred at least in part because of intense lobbying from business groups that use the H-2B program. If during any 12- or 6-week period, the employer does not offer H-2B or corresponding workers sufficient hours to meet the three-fourths guarantee, the employer must pay such workers the amount they would have earned had they actually worked for the guaranteed number of workdays. 8. Instead, lawmakers should seek comprehensive legislative solutions that tie work visa programs to sectors where there is evidence of a severe labor shortage, and that require employers to pay above-average salaries to the migrant workers recruited to fill those shortages in order to protect U.S. wage standards. H-2B Visas for Employers - Process and Requirements - Wyngaard Law Criteria For Determining Employee's Eligibility You are eligible for the H2B Visa provided: You have a valid job offer from a US employer to perform temporary or seasonal non-agricultural work 1101(a)(15)(H)(ii)(b)]. The H-2B visa holder may bring along a spouse and children (unmarried, under age 21) to the United States. Because this data hub is being launched while the FY 2021 H-2B supplemental cap is in progress, supplemental cap petitioner information will not be immediately available. An employer must prove that the job a H2B worker is going to do is seasonal and takes less than 12 months. Through the H-2B visa program, employers can temporarily bring foreign workers to the United States to perform low-wage work such as landscaping, forestry, housekeeping, and construction. Authoritative, up-to-date data on the living standards of American workers. The SWA will transfer the case to the U.S. Department of Labor for a final decision on the labor certification. The H-2B numerical limit set by Congress per fiscal year is 66,000, with 33,000 to be allocated for employment beginning in the 1st half of the fiscal year (October 1 - March 31) and 33,000 to be allocated for employment beginning in the 2nd half of the fiscal year (April 1 - September 30). National Prevailing Wage Center The H-2B Visa program allows employers to hire nonimmigrant, seasonal, non-agricultural foreign workers to work in the United States. @media only screen and (min-width: 0px){.agency-nav-container.nav-is-open {overflow-y: unset!important;}} What are the visa requirements? An employer can use other forms of payment such as commissions, incentives, and bonuses. H-2B Work Visa Requirements, Fees, and Application Process But employers need to fulfil some obligations to qualify for the H 2b program. A lock ( A locked padlock ) or https:// means you've safely connected to the .gov website. Documents establishing your intent to leave the U.S. when your H-2B status expires, such as copies of a deed to a house or a lease for an apartment, letters from an employer saying your job will be waiting for you, and so on. Nevertheless, every year it carries out a number of enforcement actions in the H-2B program and other guestworker programs. If you just need to know your visa eligibility or have a few short questions. 1101(a)(15)(H)(ii)(b). The following are requirements for both employers and employees: The H2B Visa can only be used for seasonal or intermittent jobs by non-agricultural foreign workers. The US government allows employers who can prove their temporary need for employees and cannot find them in the US to H2B Visa Read More Such notification shall be made no later than 2 days to the DOL (or any other channel specified in the Federal Register) after discovery. If a termination is approved, the employer must: fulfill the three-fourths guarantee (see condition #7, above) to the time of termination; and. EPIs research helps policymakers, opinion leaders, advocates, journalists, and the public understand the bread-and-butter issues affecting ordinary Americans. The employer undertakes to abide by the three-fourths guarantee. This guarantee ensures that the employer gives the temporary worker work hours equivalent to at least 75% of the workdays in each three-month period or 12 week period. For more on eligibility, see Overview of H-2B Work Visa Eligibility Legal Issues. Daniel Costa, The H-2B Temporary Foreign Worker Program: For Labor Shortages or Cheap, Temporary Labor?, Economic Policy Institute report, January 19, 2016. Donate. This is the "three-fourths guarantee." The concept of corresponding employment applies when non-H-2B workers perform considerably the same work described in the job order. Workers under H 2B classification are covered by all legal regulations, such as the Fair Labor Standards Act. Review our. 1341 G Street, NW- Suite 201 If workers are paid based on piece-rates, commissions, bonuses, or other incentives, the employer guarantees a wage earned every workweek that equals or exceeds the offered wage. Fact Sheet #78: General Requirements for Employers Participating in the This page was not helpful because the content: Immigration Relief in Emergencies or Unforeseen Circumstances, North American Industry Classification System. USCIS has launched an H-2B Employer Data Hub to provide information to the public on employers or agents petitioning for H-2B workers. The employer must not place any H-2B workers outside the area of intended employment or in an occupation not listed on the approved Application, unless the employer obtains a new approved Application from DOL. Need Immigration Help? The employer must post additional posters if a significant portion of workers are not fluent in English and if DOL provides the poster translated into their language. 113. Phone: 202-775-8810 epi@epi.org To ascertain your H 2B program eligibility, you must be a US employer with a valid Federal Employer Identification Number (FEIN). Immigration Services Throughout the United States, Document Review Skype Consultation (One Hour), At Herman Legal Group, Your Future Matters Most, Copyright 2017 - 2022|Herman Legal Group, LLC. The past 3 years of federal tax filings (usually quarterly 941s) to show seasonal or temporary need for additional workers during part of the year. On or before each payday (which must occur at least every 2 weeks or according to the prevailing practice in the area of intended employment, whichever is more frequent), each worker must be given a pay stub showing hours offered, hours actually worked, hourly rate and/or piece-rate of pay, and, if piece-rates are used, the number of units produced daily. The H-2B employee's unexpired Form I-94, Arrival/Departure Record, indicating his or her H-2B status, along with the employee's foreign passport, qualify as a Form I-9 List A document. For more on this topic, see "Fact Sheet #. However, previous years in which the returning worker exemption was in effect suggest a doubling or tripling is more likely. The employer may be obligated under the FLSA to reimburse workers for their inbound transportation during the first workweek to the extent that the travel costs they incurred would bring workers below the Federal minimum wage. This article covers some practical and procedural issues relating to filing for an H-2B visa. Cookie Policy. Under the returning worker exemption, any person who was employed as an H-2B worker during the past three fiscal years may return as an H-2B worker in fiscal 2016 without being counted against the annual cap of 66,000. 19. If your petition is denied or withdrawn, count 15 days from the date of the denial or withdrawal request for the date the employee's employment authorization expires. .manual-search ul.usa-list li {max-width:100%;} Events Dates for workers pay must be specified in the job order. The initial H-2B visa is good for up to one year. Wage offer or offers in the event of multiple wage offers; That the position is temporary, and the total number of job openings the employer intends to fill. On May 25, the Department of Homeland Security and the Department of Labor published a joint Federal Register temporary rule (86 FR 28198) to increase the numerical limits on FY2021 H-2B nonimmigrant visas and temporarily provide portability flexibility for H-2B workers already in the U.S. to begin work immediately with a new employer after an H-2B petition (supported by a valid TLC) is . It must advance these expenses or reimburse them in the first work week. The H-2B allows US employers to hire migrant workers to fill temporary non-agricultural roles in the US. The new regulations are effective immediately. Because of the myriad requirements and steps in the H-2B visa process and achieving H-2B status, it's a good idea to work with an attorney with experience helping employers navigate this process. The employer is considered the "Petitioner" in the H2B application process, which means that it is the employer who sponsors the employee for H2B status. Also, the employer must not impose restrictions or obligations on U.S. workers that are not imposed on H-2B workers. Jessica Garrison, Ken Bensinger, and Jeremy Singer-Vine, Senators Spar Over Proposal To Increase Foreign Workers In The U.S., BuzzFeed News, December 4, 2015. .paragraph--type--html-table .ts-cell-content {max-width: 100%;} Timeframe to Get a Nonimmigrant U.S. Visa, Do Not Sell or Share My Personal Information. 20. This was recently documented and explained in a December 2015 newsreport, which found that in the H-2B and H-2A programs: [C]ompanies across the country in a variety of industries have made it all but impossible for U.S. workers to learn about job openings that they are supposed to be given first crack at. An official website of the U.S. Department of Homeland Security, An official website of the United States government, To protect your privacy, please do not include any personal information in your feedback. Must receive guaranteed job offer by employer for temporary work prior to U.S. arrival. For more on these requirements, see "Fact Sheet #. There must be no qualified and willing U.S. workers available for the job. 9. If the worker is not transferred, the employer must provide the worker return transportation to the place from which the worker departed to work, disregarding intervening employment. The employer must pay for the return transportation and daily subsistence (if the workers have no immediate subsequent H-2B employment) for any workers who work until the end of the job order or are dismissed from employment for any reason before the end of that period. H2B Visa | Requirements & Costs | Immigration Advice Service A completed ETA Form 9142B, Application for Temporary EmploymentCertification; d. Any applicable supporting documentation (documentationsubstantiating temporary need is recommended). Employment and Training Administration Please refresh the page and try again. Documentation to establish the business is in good standing. Requirements related to visa expenses and transportation/subsistence costs: The employer must either advance all visa, border crossing, and visa-related expenses to H-2B workers, pay for them directly, or reimburse all such expenses in the first workweek. 12. Timothy Carney, The Business Lobby Wins on Unskilled Guest Workers, Washington Examiner, December 22, 2015. The H-2B provisions of the Immigration and Nationality Act (INA) provide for the admission of nonimmigrants to the U.S. to perform temporary non-agricultural labor or services. Despite the fact that DOL finds significant levels of fraud and program violations by employers, an investigative report found that DOL: [R]arely kicks employers out of the program, leaving thousands of workers each year exposed to mistreatment, injury, and even death. Also, it doesnt affect workers under a collective bargaining agreement (CBA) or personal employment contract. American workers are also hurt because when H-2B workers have few rights and employers are allowed to legally underpay them, it puts downward pressure on the wages and working conditions of American workers who are employed or seeking work in the main H-2B occupations.
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