H-2B Visa: 5 Things Employers Need to Know

As United States of America has been facing labor shortage, businesses have been exploring the idea of hiring foreign labor more and more each day. The only way you can bring in the skilled workers from foreign lands is by applying for H-2B visa. But what exactly is a H-2B visa? What are the requirements for an employer? How the application process goes on? 

There is no doubt that you as an employer might be surrounded with all the questions stated above. Well, in this blog at Aztec Labor have gathered all the relevant information to help the potential business owners navigate through the H-2B visa program. 

What is H-2B Visa Program?

The H-2B visa program is specifically curated for businesses that require workers for their non-agricultural ventures but on a temporary basis. You can find two categories of H-2B visas:

1. Full-Year : This category helps businesses hire workers year-round.

2. Seasonal: Businesses that are looking for seasonal help for a specific period can choose this category.

Both of these categories require businesses to showcase that there are not enough qualified American workers in the USA to fill the positions.

Employment Requirements for H-2B Visa

Just because you own a business does not mean you can participate in the H-2B visa program. Here is a list of requirements that businesses should meet to be allowed to apply for an H-2B visa:

• You need to guarantee a minimum of 35 hours of work each week. 

• Get a labor certification from the DOL.

• Businesses need to prove 

5 Things Employers Must Know

Here are the top five things that employers should keep in mind before starting up with the H-2B visa program:

1. Labor Laws and Regulations

   Having fair knowledge and understanding of labor laws and regulations is an essential element for hiring temporary labor from foreign lands. These laws mainly include federal, local, and state regulations, working hours, seasonal workers' safety, anti-discrimination policies, etc.

   Regularly updating oneself with practices that comply with laws such as the Equal Employment Opportunity Commission (EEOC), Occupational Safety and Health Administration (OSHA), and the Fair Labor Standards Act (FLSA)can help in preventing legal issues and promoting a healthy environment.

2. H-2B Allotment Cap

   Every year, the government has set a number of allotment capacities to allow foreign workers to get temporary employment in the United States. The process is divided into two fiscal years. From October 1st till March 31st, 33,000 seasonal workers can be employed. In the second half (April 1st till September 30th) the next 33,000 workers can be employed. The visas are processed on a first-come, first-serve basis, and in case any visas that have not been used in a fiscal year can be added to the next one.

3. Temporary Employment

   The whole purpose of H-2B visa is to allow U.S. employers hire non-citizens for temporary basis. But employers need to demonstrate that the requirement is on temporary basis like: seasonal, intermittent, peak load and one-time occurrence. Additionally, an employer also needs to file application with DHS to get a temporary labor certification. Attest a thorough recruitment campaign to showcase that not enough workers are available in the U.S.

4. Paying Prevailing Wage

   Apart from the temporary labor certification, the employer also needs to attest that they will obey all the federal, local, and state laws. It also includes paying prevailing wages to the worker according to the industry and area. Employers also have to ensure that the wages of H-2B seasonal workers do not impact the working conditions and wages of the U.S. employers who are employed in similar jobs. In addition to this employer’s also have to ensure that workers are paid three quarters over 3-moth period.

5. Workplace Culture and Employee Engagement

   Fostering a positive employment culture and promoting employee engagement are essential for organizational success. Employers should create an inclusive and supportive environment where employees feel valued and respected. Encouraging open communication, recognizing achievements, and promoting work-life balance contribute to a healthy workplace culture. Engaged employees are more valuable, loyal, and likely to contribute positively to the company's goals.

How Can Employers Comply With the H-2B Visa Program?

Before starting with the H-2B visa program, here are a few things that employers should comply with:

• Determine Eligibility

Make sure that you need to hire foreign workers temporarily. There are three reasons that can be the reason for you to look for workers outside countries: peak load, seasonal, intermittent and one-time occurrence. Assess the availability of U.S. workers to fill these roles, as the H-2B visa is designed for situations where U.S. labor is insufficient.

• Obtain Relevant License

Here is a list of relevant licenses that employers need to possess before filing for H-2B visa application. We at Aztec can help you file the licenses seamlessly. 

1. Wage Determination (Form ETA-9141  and 9165)

   A wage determination is a crucial document released by the U.S. (DOL) Department of Labor specifying the minimum wage an employer must pay H-2B workers for a particular job in a specific location. 

   It's essential as it ensures fair wages for H-2B workers, protects U.S. workers from wage suppression, and is a mandatory requirement for the H-2B visa program. Employers can request a wage determination using Form ETA-9141 or, under specific conditions, provide their own survey data on Form ETA-9165.

2. Temporary Labor Certification

   A temporary labor certification is an important document given by the United States Department of Labor that demonstrates an employer's requirement for foreign workers to fill temporary positions. 

   Employers must demonstrate a shortage of qualified U.S. workers and that hiring foreign workers won't harm U.S. workers' wages or working conditions. This certification process involves several steps and is often complex, making it essential to consult with an immigration attorney.

3. Submit Form I-129 to USCIS

Form I-129 is the primary application used by employers to request H-2B visa status for foreign workers. Submitted to USCIS, it provides crucial details about the employer, the temp workers, and the specific job role. A successful I-129 petition is essential for the worker to obtain an H-2B visa, but it must be filed after securing a DOL certificate and accompanied by all necessary supporting documentation. USCIS has a processing time for these petitions. 

• Conduct Recruitment Efforts

Conduct a recruitment campaign that demonstrates that there are not enough workers in the U.S. available. You can begin with posting a job on local media, notifying workforce agencies and interviewing qualified U.S. applicants. Document all recruitment efforts and results.

• Conduct Post-Certification Procedure

To demonstrate that there are not enough U.S. workers available, you must conduct a recruitment campaign. This includes posting the job in local media, notifying your state's workforce agency, and interviewing qualified U.S. applicants. Document all recruitment efforts and results.

• Familiarize Yourself With Employer Obligation

Employers participating in the H-2B visa program bear significant responsibilities. They must carefully show a need for foreign workers through a labor certification process, assuring that there are no competent US workers available for the role. 

It is critical to follow tight wage laws, such as paying the prevailing wage calculated by the Department of Labor. Employers are expected to conduct thorough recruitment efforts to find suitable U.S. workers before considering foreign hires. Our experts at Aztec Labor can help you in understanding all about the rules and regulations that employers need to be aware of.

• Understand Employer Obligations

Familiarize yourself with your ongoing obligations, such as ensuring that H-2B workers do not exceed their authorized stay and complying with federal and state labor laws. Regularly review the DOL and USCIS guidelines to stay updated on any changes to the H-2B program.

• Seek Guidance

Given the intricate nature of the H-2B visa program, characterized by stringent regulations and potential penalties for non-compliance, it is strongly advisable to seek guidance from an immigration attorney or a seasoned professional with expertise in the H-2B program. Their knowledge can be priceless in navigating the complex application process, guaranteeing adherence to all legal requirements, and mitigating potential risks. 

Conclusion

Navigating the H-2B visa program can be complex for employers, but understanding the key requirements and processes is essential for success. By carefully following the outlined steps, including obtaining necessary certifications, complying with labor regulations, and prioritizing employee well-being, businesses can increase their chances of successfully utilizing the H-2B program.

However, due to the program's intricacies, seeking guidance from an immigration attorney is firmly recommended to ensure compliance and mitigate potential risks. Remember, the H-2B visa program is designed to supplement the U.S. workforce, not replace it. Employers should always prioritize hiring qualified U.S. workers before considering foreign labor. 

Using Aztec H-2B consultants can help you effectively manage the H-2B process and foster a positive work environment for all employees. Businesses can improve their operations and provide overall economic growth by utilizing the services of seasonal workers.