H-2 : Temporary Labor or Needs

H-2 status can be considered for persons who do not qualify for H-1 status because they are not in "specialty occupations" as defined and interpreted (generaly for people who do not have bachelors degree). However, there are three additional major distinctions and considerations in H-2 temporary worker status. First, the job must be a temporary job; that is, not only must the alien be coming temporarily, but the job itself must have a finite existence. Second, normally there must be a determination that there are no qualified American workers available for the position; and third, it is difficult to obtain permanent resident status based on the same job for which the alien had H-2 status.

To determine whether a job opportunity is temporary the key factor must be the employer's need, not the job itself.

General

Before obtaining a final approval, all H2 petitions have to go through 3 agencies:

1) State Local Workforce Agency (SWA);

2) Department of Labor (DOL);

3) USCIS

The state local workforce agency will require employers to go through a process of advertising for a position to show no Americans are available to fill the position and are immediately available. It forwards all the recruitment results to the DOL. The employer must obtain a certification from the Department of Labor that there is a shortage of available, qualified U.S. workers at the prevailing wage in the area of intended employment. For this reason, the employer must engage in positive recruitment of U.S. workers for the specified amount of time. Based on the approved Labor Certification, the Petition for a Non Immigrant Worker with USCIS is filed, upon the approval of which, the alien might start working for the employer (if within the country) or will have to go through a consulate abroad to receive a visa.

Our office will usually have specific local guidelines obtained from each SWA to ensure that all of the requirements are met.

Requirements

Required Wages: The Immigration and Nationality Act (INA) requires that the wages paid to a temporary foreign worker be at least the higher of the actual wage rate paid to all other workers with similar experiences and qualifications for the specific employment. The hourly rate must also be at least as high as the applicable Adverse Effect Wage Rate (AEWR), federal or state minimum wage, or the applicable prevailing hourly wage rate, whichever is higher. The INA does not preclude the employer from paying the foreign worker more than the higher of the actual wage or the prevailing wage. If the wage rate for the position is determined by a collective bargaining agreement, that rate is controlling.

Recruitment: The employer must have made positive efforts to engage U.S. workers. Our company will guide you through the advertisement process; however, prior advertisement efforts are advisable to document as well.

Housing : The employer must provide free housing to all workers who are not reasonably able to return to their residences the same day. Such housing must be inspected and approved according to appropriate standards. Rental housing which meets local or state health and safety standards also may be provided.

Meals : The employer must provide either three meals a day to each worker or furnish free and convenient cooking and kitchen facilities for workers to prepare their own meals. If meals are provided, then the employer may charge each worker a certain amount per day for the three meals.

Transportation : The employer should pay the reasonable costs of return transportation for H-2B workers who are dismissed prior to the expiration of their authorized period of stay.

Dependents

Dependents (spouses and unmarried children under 21 years of age) of H-2 workers are entitled to H-4 status with the same restrictions as the principal. Dependents may not be employed under the H-4 classification.

Including more than one alien in a petition

A single petition may cover multiple workers if:

they will perform the same services;
they will work in the same location;
they are included on the same labor certification;

It is not necessary to identify requested H-2A beneficiaries by name (unless only a single worker is needed) if they are unnamed on the underlying labor certification. H-2B could be unnamed on the labor certification, but must be named in the USCIS petition unless circumstances (e.g. emergencies) make identification by name impossible. The number of unnamed beneficiaries must always be stated on the petition.

Length of Stay

The length of the stay on an H-2 visa is limited by the duration of the employer's temporary need for additional workers. The maximum authorized period of stay is one year, and the visa may be extended for a total of three years. An alien who has spent three years in the H-2B category cannot seek an extension of stay, change of status, or be readmitted under the H nonimmigrant category unless he resides and is physically present outside the US for six months.

H-2A Agricultural worker

The H-2A classification applies to an alien coming to engage in temporary or seasonal agricultural employment. It establishes a means for agricultural employers who anticipate a shortage of domestic workers to bring nonimmigrant foreign workers to the U.S. to perform agricultural labor or services of a temporary or seasonal nature.

In February 2008, DOL released a draft proposed rule to re-engineer the temporary labor certification application process for H-2As. The current procedures are as follows:

Application timelines:

A complete labor certification application must be filed with and received by the appropriate National Processing Center and local SWA at least forty-five (45) calendar days before the first date on which workers are needed. The petition must be filed by a U.S. employer or an association of U.S. agricultural producers named as a joint employer on the certification. It should be filed with:

An original valid temporary agricultural labor certification from the Department of Labor; and
Evidence that each named alien met the requirements as stated when applying for the labor certification.

In addition to the above mentioned requirements for H2, an employer must meet the following conditions:

Workers' Compensation Insurance : The employer must provide workers' compensation insurance where it is required by state law. Where state law does not require it, the employer must provide equivalent insurance for all workers.

Tools and Supplies : The employer must furnish at no cost to the worker all tools and supplies necessary to carry out the work, unless it is common practice in the area and occupation for the worker to provide certain items.

Three-Fourths Guarantee : The employer must guarantee to offer each worker employment for at least three-fourths of the workdays in the work contract period and any extensions. If the employer affords less employment, then the employer must pay the amount which the worker would have earned had the worker been employed the guaranteed number of days.

Fifty Percent Rule: The employer must hire any qualified and eligible U.S. worker who applies for a job until fifty percent (50%) of the period of the work contract has elapsed.

Labor Dispute : The employer must assure that the job opportunity for which H-2A certification is being requested is not vacant because the former occupant is on strike or is being locked out in the course of a labor dispute.

Certification Fee : A fee will be charged to an employer granted temporary foreign agricultural, labor certification. The fee is $100, plus $10 for each job opportunity certified, up to a maximum fee of $1,000 for each certification granted.

H-2B Skilled or Unskilled Worker

The H-2B classification applies to an alien coming temporarily to engage in non-agricultural employment which is seasonal, intermittent, a peak load need, or a one-time occurrence. This option also exists for Au Pairs.

Timing of the H-2B Visa Process and the H-2B Visa Cap

The process of H-2B is very time sensitive. There are only 66, 000 H-2B visas available each fiscal year, and they run out incredibly fast. The new regulations allow you to start the documentation with the SWA no more than 120 days and at least 45 days before the start work date. New H-2B visas become available at the start of the fiscal year on October 1 and April 1.

Establishing Temporary Need

An H-2B visa requires that the position must be temporary, i.e., one-time occurrence seasona;, for peak-load, or intermittent need.

1. A one-time occurrence - (a) The employer has not employed workers to perform the services or labor in the past, and the employer will not need workers to perform the services or labor in the future. (b) The employer has an employment situation that is otherwise permanent, but a temporary event of short duration has created the need for a temporary worker.

2. Seasonal need - The employer must establish that the services or labor are traditionally tied to a season of the year by a temporary event or pattern and are of a recurring nature.

3. Peak load need - The employer must establish that it regularly employs permanent workers to perform the services or labor, and it needs to supplement its permanent staff on a temporary basis due to seasonal or short-ter m d emands, with temporary employees who will not become a part of the regular operations.

4. Intermittent need - The 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 for short periods..

Petition Document Requirements

The U.S. employer should file thepetition with:

Either an original single valid temporary labor certification from the Department of Labor, indicating that qualified U.S. workers are not available and that employment of the alien will not adversely affect the wages and working conditions of similarly employed U.S. workers; or
An original notice from such authority stating that such certification cannot be made, along with evidence of the unavailability of U.S. workers and of the prevailing wage rate for the occupation in the U.S, and evidence overcoming each reason why the certification was not granted; and
Evidence, such as employment letters and training certificates, demonstrating that each named alien meets the minimum job requirements stated in the certification.