by Jennifer A. Grady, Esq.
One of the biggest complaints from owners in the landscape contractor industry is the difficulty in finding and retaining a reliable workforce. Over the past few years, there has been high turnover as companies struggle to recruit and hold on to laborers. However, for employers who need to add to their workforce to bid on contracts or maintain their current ones, there is the option to bring workers from other countries to the United States for a temporary period of nine months out of the year. The H-2B visa permits US employers to bring foreign nationals to the United States for the purposes of filling temporary, non-agricultural jobs in the landscape industry.
Who Qualifies for H-2B Classification?
To qualify for H-2B nonimmigrant classification, the petitioner must establish that:
There are not enough U.S. workers who are able, willing, qualified, and available to do the temporary work.
Employing H-2B workers will not adversely affect the wages and working conditions of similarly employed U.S. workers.
Its need for the prospective worker’s services or labor is temporary, regardless of whether the underlying job can be described as temporary. The employer’s need is considered temporary if it falls under one of the following categories:
One-time occurrence – A petitioner claiming a one-time occurrence must show that it has:
An employment situation that is otherwise permanent, but a temporary event of short duration has created the need for a temporary worker; and that it has
Not employed workers to perform the service or labor in the past, and will not need workers to perform the services or labor in the future;
2. Seasonal need– A petitioner claiming a seasonal need must show that the service or labor for which it seeks workers is:
Traditionally tied to a season of the year by an event or pattern; and
Of a recurring nature.
Note: You cannot claim a seasonal need if the time period when you do NOT need the service or labor is:
Subject to change; or
Considered a vacation period for your permanent employees.
3. Peakload need – A petitioner claiming a peakload need must show that it:
Regularly employs permanent workers to perform the services or labor at the place of employment;
Needs to temporarily supplement its permanent staff at the place of employment due to a seasonal or short-term demand; and
The temporary additions to staff will not become part of the employer’s regular operation.
4. Intermittent need – A petitioner claiming an intermittent need must show that it:
Has not employed permanent or full-time workers to perform the services or labor; and
Occasionally or intermittently needs temporary workers to perform services or labor for short periods.
Ordinarily, landscape contractor companies will apply under the “seasonal need” basis.
Once a company establishes that is qualifies for the H-2B visa and has the resources to support the application process, it should begin applications nine months ahead of time (by February for an October start date, or by July for an April start date in the following year).
Is There a Lottery and Cap?
Congress has set a numerical limit, or “cap” on the number of H-2B visas to be issued on an annual basis, currently set at 66,000 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). Because the demand for temporary workers is usually at its peak in the summer months, there are more applications for the April to December period. Over the last few years, USCIS has implemented a lottery for this period, meaning that only a portion of the applications will be selected for review. Any applications that are not selected for the lottery will be returned to the applicant with the case filing fees uncashed. To get around this competition, a company may have more success applying to bring workers to the US during the less popular October to April period.
For the second half of FY 2018, the cap filled within only 6 days. Due to the competitive nature of this visa, it is important to plan ahead and meet all government deadlines on the first day that it is possible to apply for each respective portion of the application process.
Any unused numbers from the first half of the fiscal year will be available for employers seeking to hire H-2B workers during the second half of the fiscal year. However, unused H-2B numbers from one fiscal year do not carry over into the next.
Will Additional Visas Become Available Once the Cap is Reached?
On May 8, 2019, the Department of Homeland Security (DHS) and the Department of Labor (DOL) published a temporary final rule increasing the numerical limit (cap) on H-2B nonimmigrant visas by up to 30,000 additional visas through the end of fiscal year (FY) 2019. These visas were available only to American businesses which attest that they will likely suffer irreparable harm without the ability to employ all the H-2B workers requested in their petition. In addition, these visas were available only for returning workers (workers who received an H-2B visa or otherwise received granted H-2B status in one of the last three fiscal years).
TIMELINE OF EVENTS (starting 9 months before the intended work start date)
The application process has several steps that start well in advance of the intended job period, so it is important to begin preparation for a case at least six to eight months before the intended job start date.
File Prevailing Wage Determination: 150 to 120 days before employment start date of October 1 or April 1 (about 4-5 months in advance).
File Labor Condition Application and Job Order with local State Workforce Agency: 90 days before employment start date.
Perform required US-based recruitment: After the certifying officer approves a Labor Condition Application (for each intended area of employment), the officer will provide directions on how to perform the required recruitment.
Submit H-2B petition application with United States Citizenship and Immigration Services (USCIS): Immediately after completion of the recruitment steps and final certification of the Labor Condition Application, the applicant will submit an I-129 application and supporting evidence to USCIS. For an additional fee of $1,410, this review can be completed through Premium Processing within 15 calendar days.
Employees apply for H-2B visas at US consulate abroad: Immediately after approval of H-2B visa petition, the proposed employees will submit their applications for an interview at the consulate in their home countries. Due to high demand, it may take a few weeks before an interview date is available.
Employees Travel to United States: Once a visa is approved, the Employer will arrange to bring the employees to the United States, and must provide travel costs in advance, or via reimbursement after the employee completes the first week of employment.
To illustrate this timeline in further detail, the following deadlines relate first to applications for the more popular April to December visa period, and second for the October to April period:
BEGIN RECRUITMENT PROCESS & CASE STRATEGY (July to November or February to August)
Once you decide to pursue the H-2B process, you should immediately begin creating a plan with attorney in order to meet the various government agency deadlines and designate and work with your in-house recruiting team to begin recruiting workers abroad. It is recommended that the recruiter speak the local language and be familiar with local customs and communication styles to arrange this entire process with the prospective employees while they are abroad.
The easiest way to compile a list of potential candidates is to ask current employees to recommend vetted friends and family members in their home countries. The recruiter will then visit the target cities abroad and have meetings with candidates to explain the process and documentation requirements. Over the next few months, the candidates will provide their documents to the company’s recruitment team (often 1-2 people from the Human Resources or Operations Departments), who can then organize the documents and upload them to a central document sharing system for the attorney to review.
2. FILE PREVAILING WAGE DETERMINATION (by early November or April)
Next, you will need to determine the minimum wage requirements for each job site location where you will employ workers by obtaining a Prevailing Wage Determination from the Department of Labor at least 60 days before filing a temporary Labor Certification Application on January 1 or July 1. 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. The Employer files a Prevailing Wage determination for each Metropolitan Statistical Area (MSA) in which it intends to employ workers. An MSA is a geographical region with a relatively high population density at its core and close economic ties throughout the area (this are often, but not always, based on county lines). Companies with multiple job sites may have to submit multiple prevailing wage applications, which you will determine and select with the guidance of your attorney.
3. STATEMENT OF NEED, LABOR CONDITION APPLICATION, AND JOB ORDER (January 1 or July 1)
The Statement of Temporary Need is an employer’s chance to provide the Department of Labor with a persuasive argument why it needs a specific number of workers during the specified visa period, and is filed as an attachment to the Labor Condition Application and Job Order. In this persuasive document, the Employer describes the company’s recruitment efforts and inability to fill the positions with US workers, upcoming contracts that necessitate the need for worker, job duties, trends in the industry, and company-specific statistics about its needs for workers. These documents will be filed online on January 1 for hire dates commencing April 1. This application can be filed by July 1 for an October start date, but there is a bit more flexibility due to less competition for the October to April period.
Due to the competitive nature of the spring and summer months of employment, In June 2018, the Department of Labor instituted the “millisecond rule,” meaning that applications are reviewed on a first-come, first-served basis starting at midnight EST on New Year’s Eve for the April start date. For this reason, it is imperative to file the LCA at midnight EST on January 1.
4. RECRUITMENT PROCESS (January or July)
Once the employer receives a tentative LCA approval, it must begin its recruitment process to search for qualified US workers. Generally, ads are placed in the local newspaper with the largest circulation during a weekday and two Sundays, with the addition of postings on the company website, on job boards, and/or on state work force agency websites. After an approximately two-week recruitment process, the employer will evaluate candidates and file a recruitment report with the Department of Labor.
If a candidate who is authorized to work in the United States meets the job ad criteria, the company must interview the candidate. After the interview, the company may hire the US worker, or must record a valid reason why it did not hire the US applicant, in the event the company’s recruitment process is audited by the Department of Labor.
5. FILE I-129 APPLICATION WITH USCIS (late February to early March, or late August to September)
After the Recruitment Report is processed, and the LCA is approved, the Employer must then file its I-129 application, along with supporting documentation about the company and its need for workers, with USCIS. Of note, the Employer will file an application for each MSA, including forms, corporate documents, and other supporting evidence with USCIS. Employers should elect to use Premium Processing, which means that for a fee, USCIS will provide a decision on the application within 15 calendar days, as opposed to waiting months for a decision without Premium Processing. As of this writing, filing fees are $1,410.00 for the Premium Processing Fee, $460 for the I-129 fee, and $150 for the Fraud Prevention and Detection Fee. Refer to the USCIS website for the latest fee requirements.
If the application survives the lottery and is approved, the next step is bringing the candidates to the United States. If an employer submits more than one application (one for each intended MSA), it may receive one, none, or multiple approvals because each application will be adjudicated separately.
6. CANDIDATE CONSULAR INTERVIEWS AND TRANSPORTATION TO THE U.S. JOB SITE (March to April or September to October)
For each approved application, the employer will now select from its list of potential candidates its top choice employees. Each employee will then file a DS-160 form with the Department of State and pay the filing fee (which the company reimburses). Next, the employees will go to the consulate in their home country for an interview, and bring supporting biographical documentation and proof of their ties to their home country to prove their non-immigrant intent.
For the employees who are granted a visa, they will either (1) travel on their own from their point of origin to the job site (and be reimbursed for travel by the end of the first week of employment), or (2) the employer will provide transportation to the job site, often by bus for large groups from the border. If an employee completes 50% or more of the job period, he/she will be entitled to return transportation to the original point of origin at the company’s expense. Employees will generally not be permitted to enter the United States more than a week before the intended start date of employment. Employees must return to their home countries at the conclusion of the visa period.
The employees will be able to work for the employer for a period of up to nine months. 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.
ARE YOU INTERESTED IN LEARNING MORE ABOUT THE H-2B PROGRAM?
Are you interested in applying for the H-2B visa? Schedule a call with us to determine whether you are eligible and to being the planning process. We recommend commencing the application and recruitment process in July for an April 1 date, and in February for an October start date.
About The Grady Firm, P.C.
The Grady Firm works with dynamic employers across the country to prepare successful employment-based applications, including H-2B visas for landscape contractors. 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. The Grady Firm is a resource provider for the California Landscape Contractors Association, and has provided information to its members through webinars, and seminars at the Landscape Industry Show on employment and immigration topics for California employers.
The Grady Firm is a partner firm to the California Employers Association and provides on-site training on the H-2B process, government site visit preparation, and sexual harassment training in English and Spanish.
Click here to schedule a complimentary 15-minute consultation with The Grady Firm’s attorneys; call +1 (323) 450-9010; or fill out a Contact Request Form.
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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