This article will answer how to find your H-2B workers after final approval. For example, after receiving a Temporary Labor Certificate from the Department of Labor(DOL) and filing Form I-129, you now have your final certification, but how do you get your H-2B workers?
The recruitment agencies come in; at this point, foreign recruiters contact potential beneficiaries and guide them through the recruitment process from the country of your choice for a cost. H-2B recruiters know the labor market; hiring qualified foreign workers to fill temporary nonagricultural jobs is their forte.
H-2B Seasonal Workers
DEPENDING ON THE JOB NEED, an H2B employee can be a one-time, seasonal, peak load, or intermittent employee.
Seasonal need: a job is considered seasonal if traditionally linked to a specific season of the year by an event or pattern.
One-time Occurrence: a one-time occurrence indicates that the employer will not require workers to perform the services or labor in the future, making it more like a once-and-for-all temporary job.
Peak load: the employer must prepare for a peak load requirement. Employs permanent workers on a regular basis to perform services or labor at the place of employment but due to seasonal or short-term demand, the employer needs to temporarily supplement its permanent employees at the workplace.
Intermittent need: the employer has not employed permanent or full-time workers to perform the services or labor, and requires temporary workers for short periods of time to perform the services or labor.
Who is Eligible for an H-2B Visa?
Whether the underlying job is permanent or temporary, the employer/ applicant must demonstrate that its need for nonagricultural labor is temporary. More importantly, the temporary need must be a one-time occurrence, seasonal demand, peak-load need, or intermittent need and must not adversely affect the U.S workers.
To be eligible for the H-2B program, an applicant/employer must meet the following requirements:
- In addition, employers must have a valid Federal Employer Identification Number (FEIN).
- Have a place of business in the United States; and
- Have a way for it to be contacted for employment.
The job opportunity provided by the employer must be:
- Temporary (i.e., no more than nine months, except for one-time occurrences);
- Full-time (35 hours or more per week); and
- Nonagricultural employment within a specific area(s) of interest.
How and When to Apply?
Application for an H-2B visa is a step-by-step process that begins with obtaining a Temporary Labor Certificate before filing a petition in Form I-129 with the Department of Homeland Security (DHS) U.S. Citizenship and Immigration Services (USCIS).
To obtain a Temporary Labor Certificate, you must first complete the following steps:
1. Registration will be required between 120 and 150 calendar days before the needed date.
2. Obtain a Prevailing Wage Determination (PWD) at least 60 calendar days before the required date.
3. Submit a job order and an H-2B application for a Temporary Labor Certification between 75 to 90 days before the employment start date. The job order must be submitted to the State Workforce Agency; submit the H-2B application in Form ETA-9142B and a copy of the job order filed with the SWA to the Chicago National Processing Center (Chicago NPC) after that.
How are Prevailing wages determined for foreign workers?
Hiring a foreign worker will not have a negative impact on the wages and working conditions of American workers. The United States Department of Labor regulations requires that a foreign worker’s wages be the prevailing wage rate for the employment classification in the industry or occupation. The prevailing wage rate is the minimum wage paid to similarly employed workers in a particular job in the intended employment area.
Why do you need a Prevailing Wage Determination?
The H-2B Temporary Labor Certification application cannot be submitted unless the National Prevailing Wage Center issues a valid prevailing wage determination (NPWC).
Employers can obtain this wage rate by requesting the National Prevailing Wage Center (NPWC) or by gaining access to other legitimate sources of information, such as the Online Wage Library, which is available for use in some programs.
Note that the application for PWG can be made electronically through the flag system or via mail; however, the electronic option is strongly recommended.
After the approved temporary labor certification, within seven business days of receipt, the Chicago NPC reviews the H-2B application and job order for compliance with program requirements. The employer will be notified of their decision to accept (Notice of Acceptance) or reject (Notice of Deficiency) the employer’s application and job order in writing.
Within 14 calendar days of receiving the Notice of Acceptance, the employer must conduct recruitment by the instructions in the Notice of Acceptance. ( it can be linked to the first article on Recruiting Requirements under the H2B program).
Approval of Recruitment Agencies
Before engaging a recruiter as a foreign worker/employer, it is crucial to conduct due diligence on the agency by checking if the recruiter is listed on the Foreign Labor Recruiter List, as published by the Office of Foreign Labor Certification (OFLC). Still, the U.S. Department of Labor does not endorse any foreign labor agent or recruiter listed on the nor does inclusion on the list imply compliance with the H-2B program.
Foreign Labor Recruiter List better positions the U. S Department of Labor to police recruitment violations, and employees are better protected against fraudulent recruiting tactics.
Agreement with Foreign Recruiters
One of the recruiting requirements under the H-2B program is that employers and their attorney/agent must provide a copy of agreements with the recruitment agents it engages or intends to recruit H-2B workers under this application.
This depicts that there must be a written agreement between employers and recruitment agencies that the DOL and USCIS recommend. In addition, it must be stated in the agreement that employers/recruiters can not get paid by temporary workers, and terms of your relationship amongst other things.
H-2B Eligible Countries list
The Eligibility Countries list must be strictly considered for smooth processing of whatever country employers are willing to bring in temporary employers from.
The Department of Homeland Security publishes the list of H-2B eligible countries in a Federal Register notice. The eligibility is valid for one year from publication as the secretary of homeland security may consider adding a country to the Eligible Country List upon receiving a recommendation from the U.S. Department of State or a written request from an unlisted foreign government.
However, as an employer, If you want H-2B workers from eligible and ineligible countries, USCIS recommends filing two separate petitions. Filing a single petition for workers from eligible countries and a separate petition for workers from non-eligible countries may help reduce your H-2B worker request processing delays.
1#How much does it cost to get an H-2B visa?
The USCIS processing fee for an H-2B petition is $460 as of January 2021. The visa fee is $190 if you need to apply for a U.S. visa at a U.S. embassy or consulate abroad. Other fees may apply depending on your nationality.
2#Which countries qualify for H-2B visas?
The Department of Homeland Security publishes a list of H-2B eligible countries. About 88 countries are on the list of eligible countries, including Haiti, Mauritius, and Saint Lucia, which were recently added to the list of countries eligible to participate in the H-2B programs by the Department of Homeland Security (DHS), in consultation with the Department of State (DOS), on November 9, 2021.
3#How many hours per week can foreign workers work?
The H-2B job offer must include a work schedule of at least 35 hours per week. However, if an employer requires additional hours as stated in the job advertisement, H-2B regulations require that the temporary worker be paid for any overtime hours worked. Employers must guarantee to offer employment for a total number of work hours equal to at least three-fourths of the workdays in every 12 weeks (or, for job orders lasting less than 120 days, every 6 weeks).
4#What is the H-2B Visa Cap?
There is a statutory limit to the number of foreign workers that can be granted an H2B Visa in a fiscal year in the U.S. The Congress has set the H-2B cap at 66,000 per fiscal year, with 33,000 for H-2B workers who start employment in the first half of the year (October 1 – March 31) and 33,000 for H-2B workers who start work in the second half of the year (April 1 – September 30).
5#Where are H-2B workers permitted to work?
Landscape, seasonal hospitality, forestry, construction businesses, manufacturing, food packaging, business trainers, entertainers, athletes, camp counselors, ski instructors, and home attendants for terminally ill patients are examples of nonagricultural businesses where H2B workers can work.
LET’S HELP YOU
Do you need employees in the H-2B category? First, allow us to assist you with your H-2B Visa application. Contact us at Herman Legal Group, LLC today if you’re ready to get started.
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