Are you looking to hire temporary non-agricultural foreign workers in the United States?
The H 2B program is available to employers seeking to hire for temporary work that is a seasonal need, an intermittent occurrence, or a peak load need. With H 2B classification, you can onboard temporary workers to the United States to fill positions in landscaping, manufacturing, forestry, retail and food packaging through the United States Citizenship and Immigration Services.
But employers need to fulfil some obligations to qualify for the H 2b program. Below are some helpful tips as you contemplate onboarding temporary H 2B workers.
H 2B Program Rules
Before granting H 2B visa, the employer must first show temporary need. Temporary need means that the need for H 2b workers is seasonal, an intermittent need and the employer regularly employs permanent workers to perform the services and labor.
The employer must also prove that its need for the prospective worker’s services will not adversely affect the working conditions of similarly employed permanent workers.
Each fiscal year, the intake of H 2B workers is limited by immigration services in what is referred to as the H 2B cap. The Department of Homeland Security publishes the list of eligible countries in the Federal Register Notice each year.
H 2B Program Application Process
Step 1: Are you Eligible for the H 2B visa program?
To ascertain your H 2B program eligibility, you must be a US employer with a valid Federal Employer Identification Number (FEIN). The employer must also have a physical address and presence in the US for communication purposes.
In addition, the employer’s H 2B job opportunity must:
- Be temporary
- Be full time
- Be a non-agricultural job opportunity within specified areas of intended employment
Step 2: Prevailing Wage Determination (Form ETA-9141 and 9165)
The employer obtains a prevailing wage determination from the National Prevailing Wage Center (NPWC) before applying H 2B. Employers should try to file this application at least 60 days before the determination is needed.
Step 3: File H 2B Application and Job Order with Chicago NPC
You can file either online or by mail. Your application must include the following:
- Your H 2B application for Temporary Employment Certification (TLC) and appendices
- A valid prevailing wage determination tracking number
- A copy of your job order
- Contact information for all parties, including agents, recruiters and any other persons as applicable
- Copies of all documentation that confer agency authority (for agents and recruiters)
- Applicable supporting documentation
Step 4: Conducting Recruitment
Should the application be successful, the employer receives a notice of acceptance. Within 14 days of receiving the notice of acceptance, the employer must now recruit foreign workers according to its provisions.
General H 2B Employer Requirements
The Immigration and National Act (INA) gives guidelines for the admission of nonimmigrants to the US to fill temporary nonagricultural jobs.
The interim final rule published by the Department of Labor offers the general employment requirements, which can also be found on the Wage and Hour Division Website, under the Interim final rule.
Application for Temporary Employment Certification
As part of the Temporary Labor Certification, employers filing for Temporary Employment Certification with the Foreign Labor Certification, Department of Labor on or after April 29 2015, must comply with certain regulations.
Employers must adhere to these regulations concerning H 2b workers and workers in corresponding employment.
The concept of corresponding employment applies when non-H-2B workers perform considerably the same work described in the job order. It could also mean that they perform substantially the same job duties as H-2B employed workers. However, corresponding employment in the second definition above does not apply to particular long-term workers. Also, it doesn’t affect workers under a collective bargaining agreement (CBA) or personal employment contract.
According to 20 CFR Part 655 subpart A and 29 CFR Part 503, the following are the regulations for Temporary Employment Certification:
- The employer must have H 2B registration granted by DOL. This is usually announced in the Federal Register during the transition period.
- The employer must make a payment of the wage payment on the application. The wage equals or exceeds the highest federal minimum wage or prevailing wage, local minimum wage, the normal rate paid or state minimum wage for periods specified in the job order. The wage must be paid free and clear.
- If H 2B workers are to be paid through incentives, bonuses, commissions or piece rates, the employer guarantees weekly wage concessions equal to exceeding the offered hourly wage.
- All deductions must be made on the worker’s paycheck as the law requires. Additional deductions must be disclosed in the job order. Those not specified in the job order are prohibited fees. The reasonability of the deductions is governed by 29 CFR Part 531 principles. Wage requirements shall not be met where unauthorized deductions, rebates, deposits and refunds reduce employee wages below the offered hourly wage or where the wages kick back to the employer or their agent.
- The job opportunity must be legitimate, full-time, and for a temporary position of at least 35 hours per workweek. The requirements and qualifications for the job must be in line with the normal and accepted qualifications for similarly employed permanent workers.
- The employer must specify any minimum productivity standards workers must meet to retain employment.
- The employer undertakes to abide by the “three-fourths guarantee.” This guarantee ensures that the employer gives the temporary worker work hours equivalent to at least 75% of the workdays in each three-month period or 12 week period. The guarantee period begins on the first day the worker arrives and ends on the last day specified in the job order.
- The employer undertakes to comply with all the applicable Federal, State and Local Employment Related Laws during the period of employment.
- The employer undertakes to notify the Department of Labor if any H 2B worker separates from their job before the end of the job order. Such notification shall be made no later than 2 days to the DOL (or any other channel specified in the Federal Register) after discovery.
- The employer must ensure all H 2B workers are placed within their intended employment areas. Any new positions must be communicated through a fresh application to the DOL.
- The employer cannot offer wages, terms and working conditions to US workers that are not at par with what it offers H 2B, temporary workers. Similarly, it cannot impose obligations or restrictions on US workers it does not impose on H 2B workers.
- To onboard available and qualified US labor to perform the labor or services in the job order, the employer must adhere to all recruitment guidelines. The employer must abide by State Workforce Agencies Referrals and hire qualified and eligible US workers.
- The employer must not receive any payments from the prospective workers for any activity in the application process, including but not limited to recruitment costs, DHS petition fees or any other form of agent or attorney fees.
- The employer cannot interfere in any protected activity by an H 2B worker, including but not limited to filing a complaint, being party to a labor union, legal assistance program or testifying.
- The employer must provide all the required tools and equipment to perform their duties.
Regulations on Expenses
- The employer covers visas, border crossing and other related expenses to H 2B workers. It must advance these expenses or reimburse them in the first work week.
- The employer must show how it will offer subsistence costs and inbound transportation in the job order.
- The employer undertakes to pay for return transportation and daily subsistence for all workers regardless of whether they work for the entire period specified in the job order or are dismissed for any particular reason.
- All employer-provided transportation must be in adherence to all laws and regulations.
- In the event that the employee is transferred, the employer undertakes to return the worker at their expense (disregarding intervening employment) to their next certified H 2B employer.
Frequently Asked Questions About H2B Employer Obligations
#Must H 2B Workers Receive a Guaranteed Wage?
The employer must pay its workers the wage specified in the job order. The wage rate must be equivalent to the highest prevailing wage rate or the Federal, state or local minimum wage.
The employer wage rate must be clear and free without kickbacks or deductions to the employer.
#How Do I Obtain Prevailing Wage Information?
The employer obtains the prevailing wage from the National Prevailing Wage Center by submitting ETA Form 9141. Further instructions for this application can be found here.
The National Prevailing Wage Center will reply, stating the prevailing practice and its validity period.
#Can an Employer Pay Using Other Means Other than an Hourly Rate?
An employer can use other forms of payments such as commissions, incentives and bonuses.
#What is the Frequency of Payment for H 2B workers?
H 2B workers must be paid at least every two weeks or according to the prevailing practice. Dates for workers’ pay must be specified in the job order.
#Are H 2B workers and workers in Corresponding employment covered by Federal Wage Requirements?
Workers under H 2B classification are covered by all legal regulations, such as the Fair Labor Standards Act.
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