H -2 Category: Temporary Alien Labor
for Temporary 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:
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.
