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Some of you will recall my post-New Years Eve rant about the H-2B nonimmigrant visa program, and specifically the mayhem that ensued as the clock struck midnight on New Years Eve when the U.S. Department of Labor’s (“USDOL”) servers had a meltdown. As the New Year rang in, there were applications for approximately 97,800 workers that were about to be filed with the USDOL and, because of the “unprecedented volume of simultaneous system users”, the USDOL’s computer system completely hemorrhaged and shut down. There was, according to the USDOL, over thirty times the user demand this past New Years Even compared to the previous year. Doesn’t that tell you something about the need for the H-2B visa program.
One week later – on a Monday – in the middle of the afternoon during a normal workday – the USDOL finally got its act together and most of the H-2B filings that were supposed to be filed on New Years Eve were filed. So, what happened after that?
Well, for one thing, U.S. Citizenship and Immigration Service (“USCIS”) recently announced that it has received enough petitions to meet the congressionally mandated H-2B cap for the second half of the government’s fiscal year for 2019. That means if an employer was not able to file its petition with USCIS on or before February 19, 2019, which was the final receipt date for new cap-subject H-2B worker petitions requesting an employment start date before October 1, 2019, then the employer was out of luck for 2019.
This is yet another example of a visa program that is desperately in need of reform and is woefully mismanaged.
In what can only be described as a glimmer of marginal and limited hope for some of our clients, on February 15, 2019, President Trump signed an omnibus spending bill which includes a provision providing limited cap relief to H-2B employers during FY2019. The Secretary of Homeland Security, Kirstjen Nielsen, has yet to announce how many additional H-2B visas will be made available for the remainder of FY2019.
The second thing that happened is the USDOL updated its procedures for processing H-2B applications. That is, the USDOL has proposed a rule that for all H-2B applications filed on or after July 3, 2019, which is the earliest an employer can start the H-2B process for FY2020, applications will be randomly ordered for processing based on the date of filing and the start date of work requested.
Some of you will recall previous rants of mine related to the H-1B program, and specifically USCIS’s use of a “lottery” system to determine which employers’ petitions (who wish to hire foreign workers in “specialty occupations”) it will accept, and which it will reject. I counsel my clients who we file H-1B petitions for with USCIS to “keep their fingers crossed.” Imagine that a client hires you, pays you your fee, and you tell them to “keep their fingers crossed” that USCIS simply selects their petition – in a lottery system. The system is ridiculous.
Politics aside, the United States is experiencing a strong economy with record-low unemployment. The H-2B program’s congressionally mandated cap of 66,000 visas is entirely inadequate to meet the seasonal needs of the many businesses that participate in the program. And for all the nay sayers who say “Hire American”, this program requires employers to recruit for available U.S. workers. In most cases, they’re aren’t any for these positions. And quite candidly, if everyone would allow for a moment of truth, U.S. workers simply do not want to do the jobs that are generally utilized in the H-2B program. It’s just that simple.
According to the H-2B Workforce Coalition, if Congress does not take immediate steps to raise or eliminate the H-2B cap, over 70% of seasonal positions for the second half of fiscal 2019 will go unfulfilled due to cap limitations.
Our government must come up with a better and more equitable system within which employers can hire the help that they need. The H-2B program is an absolutely necessary program for many many employers. The process for participating in it, and the ability to participate in it, however, needs to be totally reformed.
Recall that the H-2B visa program requires employers (or their attorneys) to sit by their computer at the stroke of midnight (on the east coast anyway), on New Years Eve, requiring them to hit “submit”, tens and sometimes hundreds of times, so they can participate in a visa program to fill necessary positions with their company.
USDOL indicated that employers had prepared 5,400 H-2B applications, which were in a queue to be submitted to the USDOL, seeking a total of 97,800 workers.
Last month I wrote about receiving a call from a friend of mine who heads up the local affiliate of a national not-for-profit. As a reminder, among its many charitable endeavors, this not-for-profit runs a summer camp for kids. Some of their employees come from overseas. My friend, his superiors, and the association that represents the interests of his and other similarly situated not-for-profits are concerned that the Trump Administration, as a result of the Presidential Executive Order “Buy American and Hire American”, is going to revamp the J-1 Exchange Visitor Program, and specifically two of its component visa categories, the Summer Work Travel program (and possibly even the J-1 Camp Counselor program).
In our telephone conversation, he asked whether there were any alternative visa options that they might be able to consider. I told him there was, the H-2B nonimmigrant visa, but that the requirements for qualifying for an H-2B visa are much more onerous than the J-1 Summer Work Travel or Camp Counselor programs.
The H-2B nonimmigrant visa allows foreign nationals who are citizens of certain named countries (with limited exceptions), to accept “temporary” non-agricultural employment in the United States. Before doing so, the sponsoring employer must first obtain a temporary labor certification from the U.S. Department of Labor (“USDOL”) by establishing that there were no willing, able, and qualified U.S. workers available during the recruitment period. As this employment is temporary, the foreign national must also show “nonimmigrant intent” (i.e., that he or she has a compelling reason to return to his or her country of origin).
Like the H-1B program, there is an annual numerical limitation of 66,000 H-2B visas that are available in each government fiscal year. Under the regulations, an H-2B petition may be valid for up to one year for seasonal, intermittent, or peakload needs, and for up to three years for a one-time need. Also under the regulations, H-2B petitions may be extended for periods of up to one year, to a maximum of three years in H-2B status in some instances. To be eligible for a period of H-2B status beyond these limitations, a foreign national must remain outside the United States for at least three months. Spouses and children under 21 may hold a derivative H-4 status.
There are some key aspects of the H-2B visa program, among them, the employer identifying what its temporary need is. The job may be professional, skilled, or unskilled, and there must be a seasonal, peakload, intermittent, or one-time need for the temporary services or labor. The following definitions apply:
- Seasonal. The seasonal definition of temporary need requires an employer to establish that their need for labor is traditionally tied to a season of the year by an event or pattern and is of a recurring nature and the period(s) of time during each year in which the employer does not need the services or labor. (Note that employment is not seasonal if the period of need is unpredictable, subject to change, or considered a vacation period for the employer’s permanent employees).
- Peakload. The peakload definition of temporary need requires an employer to establish that it regularly employs permanent workers to perform the services or labor at the place of employment and it needs to supplement its permanent staff on a temporary basis due to a seasonal or short-term demand and the temporary additions to staff will not become part of the employer’s regular operation
- One-Time Occurrence. The one-time occurrence definition of temporary requires an employer to establish that it has not employed workers to perform the services or labor in the past and it will not need the workers to perform the services or labor in the future or 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(s).
- Intermittent. Under this standard, an employer must establish that it has not employed permanent or full-time workers to perform the services or labor but occasionally or intermittently needs temporary workers to perform the services or labor for short periods.
As also noted above, before an employer can file a petition with U.S. Citizenship and Immigration Services (“USCIS”), it must first obtain a temporary labor certification from the USDOL. After a period of recruitment, the employer will file an application for temporary labor certification with the USDOL. The temporary labor certification represents an employer’s attestation of testing the labor market appropriately and in good faith to demonstrate that capable U.S. workers did not respond to its recruitment efforts or ultimately were not available (either due to lawful rejection by the employer, failure on the worker’s part to follow through or remain on the job, etc.) to perform the labor or services. Before filing the temporary labor certification, the law requires the employer to recruit for the offered position(s). This recruitment must take place within 120 days of the start date for the offered positions. Prior to the recruitment, the employer must also apply for and receive a Prevailing Wage Determination from the USDOL, which can take around 60 days to receive.
Once all of this is done, and assuming there are no available U.S. workers and the temporary labor certification is certified by the USDOL, the employer will file its H-2B petition with USCIS. It is permissible for an H-2B petition to be filed for multiple beneficiaries provided the temporary labor certification application on behalf of multiple workers entails “the same service or labor on the same terms and conditions, in the same occupation, in the same area of intended employment, and during the same period of employment.” Once that’s approved, it will be forwarded to the U.S. embassy / consulate closest to where the foreign nationals reside and that issues H-2B visas.
I have completely over-simplified this process. It’s highly technical and keeping on top of the timing is critical. However, for an employer that has the type of needs that are outlined above, the H-2B visa may be a very viable option.
 On April 18, 2017, President Trump signed an Executive Order entitled “Buy American and Hire American.” The purported purpose of the “Hire American” portion of the order is to create higher wages and employment rates for U.S. workers, and to protect their economic interests by rigorously enforcing and administering the laws governing entry into the United States of foreign workers. Most of the focus of the implications of this Executive Order has been on the H-1B nonimmigrant visa program. Other visa programs are clearly in the cross-hairs as well.