THE H2B VISA PROCESS

Immigration lawyers oftentimes receive calls from people who are interested in hiring temporary workers from abroad. Recently, I received such a call from a business owner who was interested in obtaining an H2b Visa for a prospective employee. I told her that it would be possible, but far from guaranteed since the H2b Visa requirements are stringent.

This post provides an overview of the steps in the process and some of the hurdles that you will have to clear before you can successfully obtain an H2b Visa for a foreign national employee.

STEP ONE: Examine the H2b Visa Country Requirements

Before you consider the H2b Visa, you should first look at the country requirements. At the time of this writing, citizens of the following countries can qualify for the H2b Visa:

Andorra, Argentina, Australia, Austria, Barbados, Belgium, Brazil, Brunei, Bulgaria, Canada, Chile, Colombia, Costa Rica, Croatia, Czech Republic, Denmark, Ecuador, El Salvador, Estonia, Fiji, Finland, France, Germany, Greece, Grenada, Guatemala, Honduras, Hungary, Iceland, Ireland, Israel, Italy, Jamaica, Japan, Kiribati, Latvia, Lichtenstein, Lithuania, Luxembourg, Macedonia, Madagascar, Malta, Mexico, Monaco, Mongolia, Montenegro, Mozambique, Nauru, The Netherlands, Nicaragua, New Zealand, Norway, Panama, Papua New Guinea, Peru, Poland, Portugal, Romania, Samoa, San Marino, Serbia, Singapore, Slovakia, Slovenia, Solomon Islands, South Africa, South Korea, Spain, St. Vincent and the Grenadines, Sweden, Switzerland, Taiwan, Thailand, Timor-Leste, Tonga, Turkey, Tuvalu, Ukraine, United Kingdom, Uruguay, Vanuatu

STEP TWO: Examining the H2b Visa Position

Once you have verified that your prospective employee has the required nationality, the next step is to determine if the position qualifies for the H2b Visa. In order to qualify, the position must be full time. Full time(for H2b visa purposes) means 35 or more hours per week.
Also, the position must be based on a temporary need. The temporary need can be based on a one-time occurrence, a seasonal need, a peakload need or an intermittent need.

There have been many H2b visa cases that have failed due to the fact that the need was permanent or long term. For example, if you request an H2b visa for a construction company that will need the employee for ten years, it is likely that your petition will fail. In order to qualify, the position should be based on a shorter well defined period. For example, if you have a large contract for a project that will require additional employees for a 10 month period of time, your chances of success will be much higher.

In addition to failing on the basis of temporary need, many petitions are rejected due to the job qualifications or requirements. As you consider the H2b Visa, it is important to note that any job requirement must be legitimate and consistent with the normal requirements for similar positions in the same area of employment. Many applicants run into problems with language requirements. If you have foreign language requirements for the position, you can expect increased scrutiny. In order to obtain an approval, you will have to demonstrate that the language requirements are intrinsic to the position. If you cannot, the Department of Labor(DOL) will see the requirements as unduly restrictive and deny your application.

STEP THREE: The Prevailing Wage Determination

Once you decide that the H2b Visa is a good option for your prospective employee, you will obtain a prevailing wage determination. This is requested by using form ETA-9141 which is typically submitted electronically. The purpose of this step is to ensure that you will be paying the same wages as others in the area for similar positions.

The DOL recommends that you take this step as early as possible. As a rule of thumb, you should plan to file the prevailing wage determination request at least 60 days before the date when you plan to use it. Once it is issued, the prevailing wage determination will be valid from 90-365 days. For timing purposes it is important to understand that the determination must be valid on the date that the job order is submitted and the temporary labor certification is filed.

STEP FOUR: SWA Submission and Filing for the Temporary Labor Certification

The State Workforce Agency(SWA) Filing

At the same time as the temporary labor certification application(discussed below), you have to submit a job order with the state workforce agency(SWA) serving the intended area of employment. There are a number of requirements for the SWA application. Amongst other things, you are required to:

• Advise the SWA that the job order is in connection with an H2b application
• Offer(in the job order)US workers the same benefits and conditions that are offered to the H2b visa workers
• Provide the name and contact info for the employer
• Indicate the number of openings
• Describe the position with sufficient detail to inform US workers or the labor to be performed(This includes the duties, education and experience requirements, work hours and anticipated dates of need).
• Indicate the location of the job
• State the offered wage
• Indicate the availability of overtime
• Indicate whether training will be provided
• State the standard for computing weekly wages
• Indicate frequency of pay
• Indicate the availability of fringe benefits such as housing or food
• Advise that you will make all required deductions
• Advise if transportation will be provided
• State that you will reimburse the H2b visa worker for all visa expenses, fees etc.
• Indicate that you will provide everything that is required for the job
• Instruct applicants to apply to the nearest SWA office

The DOL Filing

When you file the temporary labor certification(at the same time that you place the job order with the SWA) you will use ETA 9142B electronically through the DOL system. 

When the DOL receives the filing, they will review it for compliance. In the event that the reviewing officer finds that the application is incomplete, you will receive a NOD(Notice of Denial). If you receive a NOD you will have an opportunity to respond before a final denial. Hopefully, you will receive a NOA(notice of acceptance). If such a notice is issued, you will receive guidance on starting the recruitment process.

STEP FIVE: The Recruitment Process

Once the notice of acceptance is issued, you will have 14 calendar days to complete the recruitment process. Even though the recruitment process must be completed within 14 days, you will still have to accept referrals and applications up to 21 days before the start date.
Since the purpose of the recruitment process is to ensure that you will not be passing on qualified US workers, there are specific advertising and reporting requirements that you will have to comply with. The Advertising Requirements include:

• Placing an advertisement in a newspaper of general circulation serving the intended area of employment for two separate days(one day must be a Sunday).
• If the officer who issued the NOA indicates that a foreign language newspaper is appropriate, then you must run the ad in such a newspaper
• The advertisements must direct employees to apply to the State Workforce Agency
• You must include your employer’s name and the contact info
• Detailing the geographic area of employment
• Provide a thorough job description including the duties, the hours and the education and experience requirements
• Include a statement that indicates if the position is temporary or full time
• A statement regarding overtime
• A statement regarding on the job training
• The offered wage must be detailed in the advertisement
• Any lodging that is being offered
• A statement directing applicants to apply to the nearest SWA

STEP SIX: Preparing a Recruitment Report

Your notice of acceptance of the temporary labor certification will include a date by which a recruitment report must be prepared. The report should include:

• Information on each recruitment source/activity
• The name and contact info for all US worker applicants and the dispositions of their applications
• With respect to each US worker applicant, state whether the job was offered and whether the individual accepted or declined
• Provide the lawful reasons for why any US worker applicants were not hired
• Confirm how you contacted all US workers that you were required to contact
• Confirm that any additional required recruitment was completed

STEP SEVEN: File Form I-129 to Obtain the H2b Visa

Once the temporary labor certification application has been approved(by certification of the application), you can apply for the H2b Visa by sending form I-129 to USCIS. When you file, it is important to note that the start date on the form I-129 must match the start date on the temporary labor certification application. 

Also, you should know that the I-129 cannot be filed more than 120 days from the start of the job. Since it usually takes USCIS longer than 120 days to make a decision, you will want to pay for premium processing which ensures that you will receive a decision within 15 days.

STEP EIGHT: Retain Documents

After you have filed for the H2b Visa, you will have to retain certain documents for three years. The documents that you will have to keep include:

• The H2b registration and all related documentation such as the temporary labor certification application, the prevailing wage determination etc.

• Any other documentation regarding the temporary need that was not already submitted

• Recruitment documentation including the job order placement records, copies of advertisements that were placed and documentation showing that you conducted any additional recruitment activity that was required by the government

Conclusion

For anyone who wants to hire a foreign national employee to meet a temporary need, it makes sense to consider the H2b Visa. However, the visa requirements are extensive and oftentimes difficult to meet. To make matters worse, there are complex timing issues to consider which this post did not address. The timing issues and all of the requirements should be carefully considered before trying to obtain an H2b Visa. This is best accomplished with the guidance of an immigration lawyer.