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.

Examples: •Dallas–Fort Worth metroplex, •Norfolk-Virginia Beach (Hampton Roads), •Riverside–San Bernardino (Inland Empire) or •Minneapolis–Saint Paul (Twin Cities).

Step 3: Statement of Temporary Need

This is your chance to provide the Department of Labor with a persuasive argument why you need a specific number of workers during the specified visa period. Describe your failed recruitment efforts, upcoming contracts, job duties, trends in the industry, and company-specific statistics. Keep documents supporting these arguments on hand for RFE or I-129. This will be filed with the LCA on January 1 for an April 1 start date or on July 1 for an October 1 start date.

Step 4: Temporary Labor Certification

The Petitioning employer must file a job order with the state workforce agency that has jurisdiction over the proposed employment, 75 to 90 calendar days before the proposed employment start date. Simultaneously, the petitioner will file an application for temporary labor certification with the Department of Labor. If accepted, Certifying Officer will provide instructions, which may include placing newspaper advertisements and contacting bargaining representatives. File on January 1 for April 1 start date and July 1 for October 1 start date.

Step 5: Recruitment Process •After the Labor Condition Application is tentatively

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approved, there will be instructions on the length and location of the recruitment process (about 1-2 weeks). Generally, ads are placed in the local newspaper with the largest circulation during a weekday and two Sundays. Check with current regulations to determine whether online ads are an option. You can also place a job ad on the local workforce agency website.

The wage in the job ad must be the amount provided on the Prevailing Wage Determination. Employers must keep records of employee applications and the reasons any employees are not selected for the job. All wages and benefits must be the same for US and foreign workers.

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Step 6: I-129 Petition Application

Once the Department of Labor issues an approved Temporary Labor Certification, the petitioner can then file an H-2B petition application (I-129) with USCIS. The petitioner will have to demonstrate the temporary need and nature of the employment. The application must be submitted with all applicable forms, fees, and supporting evidence. Petition applications can be filed for an individual employee, or for multiple employees.

This application will be filed around late February to early March for an October 1 start date or late August to early September for an April 1 start date. The I-129 is eligible for Processing (15-calendar day review) for a filing fee of $1,440.00 for each application/MSA. If Premium Processing is suspended by USCIS for a period of time (for example, due to Covid-19), you an submit an I-907 form later to request the Premium Procesing once it becomes available again.

Step 7: Consular Interview in Employee’s Home Country

If the I-129 is approved, the employee will file a DS-160 application online with the Department of State. The final step in the H-2B process is for the proposed employee to attend an interview at the United States consulate or embassy serving the employee’s home country. During the interview, a consular officer will review the approved H-2B petition and the proposed employee’s background and qualifications. If the visa is approved, the consulate/embassy will keep the passport for a few days to add the visa stamp. The employee will still be proceed by an immigration officer upon entry to the United States who has discretion whether to admit the him or her to the country.

Spouses and unmarried children under the age of 21 may accompany the employee to the interview and will submit their own DS-160 application. If approved, they would enter the US on an H-4 visa.

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Step 8: Transportation from Point of Origin to Job Site

Employers arrange for transportation from the employees’ “point of origin” to the job site. Once employees are granted a visa, the employer will provide transportation to the job site area (for example, a bus from Tijuana to the California counties where the employees will live), or reimburse the employee for travel, lodging, and meals to arrive to job site.

Employers must report any employees who abandon the job to the Department of Labor and DHS within 2 days of abandonment. If the worker fails to report to work after 5 consecutive “working days,” the position may be considered “abandoned” and the employee may be considered terminated “for cause.” Employers must reimburse employees for visa and travel-related expenses if they complete the first week of employment by the end of the first week.

Step 9: Send the employees home and prepare for next year

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Employees must return to their home countries at the conclusion of the visa period. Employers must provide return transportation to employees who complete at least 50% of the job period or are send home before the job is scheduled to end. At the conclusion of the program, the employees must return to their home country. The employer will have to reapply again the following year to bring these employees back to the US.

U.S. Licensing Requirements

The following information is provided by the Federal Motor Carrier Safety Administration.

Q1: Which foreign country’s Commercial Licenses are reciprocally recognized for operating a CMV in the United States?

A1: The only foreign commercial driver licenses (CDLs) that are accepted in the United States are from the federal government of Mexico, and provinces and territories in Canada. The United States has CDL reciprocity agreements with only these two North American countries. In rare instances, FMCSA may issue temporary waivers (up to 90 days) or exemptions (up to two years) to allow drivers licensed in other countries to operate in the United States. These drivers are required to carry the waiver or exemption document with them.

Therefore, if the driver is not from Canada or Mexico, or does not have a waiver or exemption, he or she would have to obtain a US commercial driver license before working in the US.

Q2: A driver with residence in Mexico drives for a U.S. company. Does that driver need a state-issued commercial driver’s license?

A2: No, the driver may hold a valid license for the type of vehicle operated that is issued by the Mexico’s Secretaría de Comunicaciones y Transportes (SCT). Licensing is not dependent on place of employment.

However, to clarify further, the U.S. only recognizes the license (Licencia Federal de Conductor) issued by Mexico’s SCT (NOT a Mexican-state-issued license) as reciprocal for operations in the U.S.

Is the H-2B Program the Right Option for You?

Although the H-2B program requires advanced planning and coordination between the company and the employee, it may be a viable option for companies experiencing a driver shortage. To find out if the H-2B program is right for you, schedule a consultation with The Grady Firm by booking a call online or calling +1 (949) 798-6298.

The Grady Firm works with dynamic employers across the country to prepare successful employment-based applications, including Green Cards based on employment. In addition, we help individuals, families, employees, business owners, and investors obtain non-immigrant and immigrant visas (B-1/B2, H-1B, H-2B, L-1A, L-1B, O-1, TN, E-2, E-3), as well and Green Cards and citizenship based on family relationships, investment, or employment.

This article is for informational purposes only, and does not constitute legal advice or create an attorney-client relationship. This article does not make any guarantees as to the outcome of a particular matter, as each matter has its own set of circumstances and must be evaluated individually by a licensed attorney.

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