H-2B Visas for Local Truck Drivers During Driver Shortages
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The U.S. trucker shortage is expected to more than double over the next decade as the industry struggles to replace aging drivers and recruit more women. The driver deficit swelled 60,800 in 2018, which was a 17% increase over the prior year, according to a study by the American Trucking Associations. What if there was another way to fill this shortage by recruiting drivers from abroad? There may two solutions: 1) the H-2B temporary visa, and 2) the EB-3 Green Card for non-skilled workers.
The H2-B visa permits US employers and agents to bring foreign nationals to the United States for the purposes of filling temporary, non-agricultural jobs.
To apply, the company and employee must meet the following 3 qualifications:
1. There are not enough U.S. workers who are able, willing, qualified, and available to do the temporary work.
2. Employing H-2B workers will not adversely affect the wages and working conditions of similarly employed U.S. workers.
3. The company’s need for the prospective worker’s services or labor is temporary, regardless of whether the underlying job can be described as temporary.
Period of Stay
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Generally, USCIS may grant H-2B classification for up to the period of time authorized on the temporary labor certification (usually 6-9 months). H-2B classification may be extended for qualifying employment in increments of up to 1 year each. A new, valid temporary labor certification covering the requested time must accompany each extension request. The maximum period of stay in H-2B classification is 3 years.
A person who has held H-2B non-immigrant status for a total of 3 years must depart and remain outside the United States for an uninterrupted period of 3 months before seeking readmission as an H-2B non-immigrant (with exceptions). Additionally, previous time spent in other H or L classifications counts toward total H-2B time.
Eligible Countries List
Effective Jan. 19, 2020, nationals from the following countries are eligible to participate in the H-2B program:
Temporary Need
The employer must show that the need for these employees is temporary under on of the following four bases:
4 METHODS TO DEMONSTRATE TEMPORARY NEED
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1. Seasonal Need: tied to a season of the year by an event or pattern that recurs. •Note: this does not apply if time period when you do NOT need the service or labor is unpredictable, subject to change, or considered a vacation period for your permanent employees.
2. Peak Load Need: an employer regularly employs permanent workers to perform the services or labor at the place of employment but needs to temporarily supplement its permanent staff at the place of employment due to a seasonal or short-term demand. The temporary additions to staff will not become part of the employer’s regular operation.
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3. Intermittent Need: an employer has not employed permanent or full-time workers to perform the services or labor but occasionally or intermittently needs temporary workers to perform services or labor for short periods.
4. One-time occurrence: rare instance when an employment situation that is otherwise permanent, but a temporary event of short duration has created the need for a temporary worker that has not be needed in the past and will not be needed in the future.
Visa Lottery for April to October Period
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Congress has set a numerical limit, or “cap” on the number of H-2B visas to be issued on an annual basis, which is currently capped at 66,000 visas per fiscal year. The cap is split into two parts: 33,000 for workers who begin employment in the first half of the fiscal year (October 1 – March 31) and 33,000 for workers who begin employment in the second half of the fiscal year (April 1 – December 31).
In 2020 and 2019, this cap filled up by the first week of January for the April to October period. Therefore, if you have flexibility or a greater need for the October to April period, there is a higher likelihood of obtaining the visa because there have not been enough applications to merit a lottery for the fall to spring applications. For example, over the last few years, the application period that opened in October did not fill up until December, whereas the application period for the more popular spring to fall seasons was oversubscribed in just a few days. Therefore, the best time to apply is in September to December to commence work in the fall.
Application Process for Employers
There are steps that must be completed before an employee can commence working on the H-2B program.
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Step 1: Begin Recruitment Process
First, ask current employees for recommendations for vetted friends and family in their home countries or work with a recruiter.
•Have employees and candidates sign acknowledgement of immigration obligations
•Visit target areas abroad and have meetings with candidates to explain the process, required information, and documentation requirements
•Provide list of documents to candidates and get signed before leaving the country •Determine how and when the worker will get licensed in the US
•Organize in an online portal to keep track of documents and personal data, and
•Determine who in your company will be the recruiter, attorney liaison, and data entry person.
Step 2: Prevailing Wage Determination
An employer must obtain Prevailing Wage Determination from the Department of Labor at least 60 days before filing a temporary labor certification. The prevailing wage determination will list the minimum wage for which the petitioner must pay the temporary worker to qualify under the H-2B classification. This should be prepared by early November for an April 1 start date and by early April for an October 1 start date.
Caveat: The most important issue about the Prevailing Wage Determination is that there must be PWD for each Metropolitan Statistical Area (MSA) though which a driver will pass in his or her work. If an over-the-road trucker passes through numerous counties or MSAs in his or her route across the country, it would be impractical to file an application for a PWD in each one. Therefore, the H-2B is most practical for local jobs, such as dump trick driving, that is limited to the territory in just one or a few MSAs.
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A metropolitan statistical area (MSA) is a geographical region with a relatively high population density at its core and close economic ties throughout the area. Such regions are neither legally incorporated as a city or town would be, nor are they legal administrative divisions like counties or separate entities such as states, such as New York City or Philadelphia.
Some metropolitan areas contain more than one large city with no single municipality holding a substantially dominant position.