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Business Immigration Zone: To Be or Not to H-2B: The Pros and Cons of the Temporary Guestworker Program

January 27, 2016

Employers use the H-2B program to bring foreign nationals to the United States to fill temporary non-agricultural jobs. To qualify to hire temporary foreign labor, employers must meet specific regulatory requirements.

Before requesting H-2B classification for foreign workers, employers must first apply for and receive a temporary labor certification for H-2B workers from the U.S. Department of Labor. Although the program is a very useful tool for employers who need to supplement their workforce with additional skilled or unskilled labor, the H-2B program has been burdened with administrative delays, massive regulatory modifications and uncertainty. The government’s most recent budget battle resulted in the 2016 Consolidated Appropriations Act, which forced changes to the H-2B program that are generally beneficial to employers, though temporary in nature.

The pros and cons of the current H-2B program are examined below:

Who Can Qualify for H-2B Temporary Labor?
Employers qualify by proving there are not enough U.S. workers who are able, willing, qualified and available to do the temporary work. Employers must show use of H-2B labor will not adversely affect the wages and working conditions of similar U.S. workers. Finally, employers must establish a need for temporary labor that is seasonal, peakload, intermittent or a one-time occurrence.

Who Can Work in H-2B Status?
Any employee who meets the employer's minimum job qualifications may work in H-2B status as long as the employee is a national of an eligible country. Not all countries are eligible for H-2B preference. The list of H-2B eligible countries is available at www.uscis.gov.   

What Wages Apply to H-2B Guestworkers?
Employers must pay H-2B employees the prevailing wage set by the U.S. Department of Labor. Prevailing wages are determined by market conditions and the job qualifications that are normal to a particular occupation. In many cases, the prevailing wage may exceed the wage rate that an employer might anticipate. Employers may submit private wage surveys to establish the prevailing wage.

How Long Can H-2B Employees Work in the United States?
Employees in H-2B status may work for up to nine months each year. However, when an employer’s need is a one-time occurrence, H-2B employees may remain in the United States and work for their employer for up to three years.

Can H-2B Employees Leave One Employer to Work for Another?
Generally, no. H-2B visas are normally employer specific. H-2B employees may not easily transfer from one employer to another.

Does Employing H-2B Labor Hurt American Workers?
No. Employers who legitimately obtain H-2B certification from the U.S. Department of Labor must first establish that no U.S. workers are available to fill the employer’s need. Doing so requires employers to complete a recruitment program where the job opportunity is first offered to U.S. workers. An employer may bring in H-2B labor after efforts to identify U.S. workers are exhausted.

How Many H-2B Employees Can an Employer Bring In?
Employers may bring in as many H-2B workers as necessary to fill their legitimate need. However, there is an annual cap on H-2B visas. No more than 66,000 H-2B visas are issued each year. The first 33,000 H-2B visas are issued between October 1 and March 31, and the remaining half are issued between April 1 and September 30. The cap has been met each year in the past two years.

How Does the Recent Appropriations Bill Impact the Annual Cap?
Good news! The 2016 Appropriations Act provides a cap exemption for returning workers. Specifically, any alien who has already been counted toward the H-2B cap in 2013, 2014 or 2015 will not be counted toward the H-2B cap in 2016. This change is beneficial in light of the shortage of H-2B numbers that have occurred recently.  

How Can Private Wage Surveys be Used?
The 2016 Appropriations Act instructs the U.S. Department of Labor to accept private wage surveys from employers. Employers may present private wage surveys to obtain wage determinations that more accurately track industry trends. Private wage surveys must meet the methodology specifications established by the U.S. Department of Labor.

What is a Temporary Need?
More good news! The 2016 Appropriations Act changed the definition of “temporary need” from nine months to “one year or less.”

Will the Government Audit my Business if I use the H-2B Program?
Not exactly. Employers are always required to comply with H-2B regulations if they use the guestworker program. However, the 2015 Appropriations Act contains a provision that prevents the U.S. Department of Labor from using federal funds for H-2B audit purposes. Wage and hour investigations were not impacted and are still fair game.

For more information on the H-2B guestworker program and how it can help your business, contact Brandon Davis at brandon.davis@phelps.com.