How Can the H-2B Classification Help Contractors Find Good Workers?

Nearly all businesses require employees to operate, and all successful businesses require that those employees be competent and capable. One issue facing contractors is the inability to find well-qualified and competent workers. Another issue facing contractors is the shortage of workers available to keep up with increased building demands in the United States. The H-2B classification can help contractors address these issues by expanding the pool of potential workers.

What Is the H-2B Classification?

The H-2B classification was created in order to facilitate the hiring of foreign workers to fill temporary needs with U.S. businesses. For the H-2B classification, it must be established that (1) there are not sufficient U.S. workers who are qualified and available to perform the temporary services or labor for the employer; (2) that the employment of foreign workers will not affect the wages and working conditions of similarly employed U.S. workers; and (3) that a temporary need exists for the employer.

The H-2B program has two components with two different government agencies. The first component deals with the U.S. Department of Labor (DOL) and the second component deals with the U.S. Citizenship and Immigration Services (USCIS). Each agency oversees a different aspect of the H-2B program. The DOL focuses on the labor market, and is tasked with determining that:

  1. There are not sufficient U.S. workers who are qualified and who will be available to perform the temporary services or labor for which an employer desires to hire foreign workers.
  2. The employment of H-2B workers will not adversely affect the wages and working conditions of similarly employed U.S. workers.

At the end of the day, the DOL wants to make sure that the foreign worker is not taking a job from an American or affecting the wage market for American workers. The USCIS component of the H-2B program focuses on the temporary need of the employer and the foreign worker’s qualifications. The USCIS component is the last part of the process and is the final authority on whether the H-2B classification will be granted to the foreign worker.

What Is a Temporary Need?

A critical element of the H-2B analysis focuses on the temporary need of the employer. There are four types of needs for H-2B classification purposes. They are (1) one-time occurrence; (2) seasonal need; (3) peak-load need; and (4) intermittent need. A one-time occurrence is as the name suggests; it is an event that occurs one time which requires the need for additional workers and after this event concludes, so does the need for the workers. A seasonal need exists where the employment is traditionally tied to a season of the year by an event or pattern and is of a recurring nature. Examples include the hiring of workers during the Christmas shopping season by UPS and FedEx due to an increase in holiday shipping demands, and when the Disney theme parks require additional workers in the summertime because of an increase in visitors after schools are no longer in session. Both these needs are seasonal and recur every year. A peak-load need exists where the employer normally employs permanent workers to perform a service or labor and an increased seasonal or short-term demand requires additional workers who will not become part of the employer’s regular operations. The key with a peak-load need is that it is not recurring. An intermittent need exists where an employer does not employ permanent or full-time workers to perform services or labor and occasionally needs temporary workers for short periods of time.

What Is the Process?

The H-2B classification process starts with the DOL and ends with USCIS. The first step is to file an Application for Prevailing Wage Determination with the DOL. This application outlines the proposed employment and results in a Prevailing Wage Determination (PWD) issued by DOL, which sets the minimum amount that can be paid to the foreign worker. After the employer received the PWD from the DOL, the employer can begin the recruitment process. The recruitment process includes posting a job order with a state agency and running two print advertisements as well as interviewing candidates that apply for the position. After recruitment is completed, the employer submits an Application for Temporary Employment Certification with the DOL along with a completed recruitment report. Once a final determination is made by the DOL and the application is certified, the process then shifts to USCIS. The final step is to file an I-129, Petition for a Nonimmigrant Worker. If the foreign worker is outside the United States, he or she will also need to apply for an H-2B visa at a U.S. Embassy or Consulate.

H-2B “Cap” and the Period of Stay

For the H-2B classification, there is a statutory limit on the total number of foreign nationals who may be granted H-2B status or issued an H-2B visa. This is commonly referred to as the H-2B “cap” and is currently set at 66,000. Unlike other statutory limitations, the H-2B cap is split between two parts of the year, with 33,000 allocated for the first half of the U.S. government fiscal year (October 1 to March 31) and 33,000 allocated for the second half of the U.S. government fiscal year (April 1 to September 30). If any of the first 33,000 are not used by the beginning of the second half of the fiscal year, those unused numbers will be reallocated to the second half of the fiscal year. While cases based on a one-time occurrence can be approved for up to 3 years, all other H-2B classifications will be approved for, at most, 10 months. The H-2B classification can be renewed, in increments of up to one year, and the foreign worker can stay in the United States for a maximum for 3 years. After 3 years, the foreign worker must stay outside the United States for an uninterrupted period of 3 months before seeking readmission under the H-2B classification.

Pros and Cons of H-2B Classification

For contractors, the H-2B classification can provide them temporary workers when needed for short periods of time. This can be especially important when there is difficulty finding quality workers in the United States. But as with any immigration classification, there are some pros and cons to consider when it comes to the H-2B classification.

Pros

  • While there is a cap on the number of H-2B statuses granted/visas issued, there is no lottery system in place like the H-1B. This means that there are usually H-2Bs available if you file at the right time.
  • There are no special qualifications, educational or otherwise, required for the H-2B classification, unlike some other immigration classifications. The foreign worker must simply meet the requirements for the position.
  • Premium processing from USCIS, which guarantees a response in 15 days after filing, is available.
  • The H-2B classification is renewable, in increments up to 1 year, for a total stay in the United States of 3 years. After the 3-year limit is reached, the foreign worker only needs to leave the United States for 3 months before he or she is eligible for H-2B classification again.

Cons

  • The H-2B classification essentially requires the foreign workers to be employees of the company by requiring an employee-employer relationship for the proposed employment. Independent contractors would not qualify.
  • From start to finish, it takes about 3 to 4 months while utilizing USCIS’s premium processing service, or 4 to 7 months without the premium processing service. If a worker is needed quickly, the H-2B classification may not be the right choice.
  • Only individuals from certain countries are eligible for the H-2B classification.
  • The minimum wage that must be paid to the H-2B recipient is fixed by the DOL and may be higher than what the employer is willing to pay or normally pays similar workers.
  • The foreign worker needs to have legal status in the United States or reside outside the United States to qualify. Illegal immigrants do not qualify for the H-2B classification.

The H-2B classification may help contractors address some of their labor needs. Contact an experienced immigration attorney to see whether this is a good fit for your company.

About the author: Paul Messina is an attorney at Cotney Construction Law who focuses his practice on immigration law. Cotney Construction Law is an advocate for the roofing industry and serves as General Counsel for FRSA, RT3, NWIR, TARC, WSRCA and several other roofing associations. For more information, visit www.cotneycl.com.

Author’s note: The information contained in this article is for general educational information only. This information does not constitute legal advice, is not intended to constitute legal advice, nor should it be relied upon as legal advice for your specific factual pattern or situation.