The H-2B temporary non-agricultural worker visa programs has traditionally been the “go to” visa option for employers seeking to hire foreign nationals coming to the United States to fill non-professional or non-degreed occupations. H-2B’s require considerable investment as the procedure to obtaining these visas can involve as many as five different state and federal governmental agencies and are the only nonimmigrant work visas which requires an employer to first obtain a temporary foreign labor certification after the employer conducts a test of the labor market. As a result, the H-2B visa program has slowly entered the menu of work visa options when sponsoring foreign national employees. Over the years, this has changed as the H-2B visa program has become increasingly necessary to fill employers’ temporary labor demands.
Many factors contribute to their growing usage: the H-1B cap blackout leaving employers with limited visa work options for skilled workers or positions requiring degrees, the loss of essential workers in the labor force due to increased I-9 worksite enforcement, and the growing labor needs of employers in states facing some of the lowest rate of unemployment in years. We are also facing a generational crisis where young people no longer want or need to take summer jobs as other extracurricular opportunities become available to them and where families may have more disposable income to finance these activities. As a result, in the H-2B context where there is an annual cap of 66,000 visas of which half is released on October 1 and the remaining half is released on April 1, the H-2B visa numbers have consistently run out within the past five years before the end of the fiscal year. Most recently in fiscal year 2021, the H-2B visa cap was reached on November 16 for the first half of FY 2021 and on February 12, 2021 for the second half of FY2021, and the numbers of H-2A and H-2B filings with the DOL have continued to increase since 2012. This trend is expected to continue even though the H-2 programs are only available to nationals of certain countries.
When is an Occupation Agriculture Versus Nonagricultural?
The first question one should address when contemplating filing an application for an H-2 certification is whether the occupation is agricultural versus nonagricultural. In most cases the answer is very clear. For example, harvesting fruit and vegetables on a farm is clearly agricultural in nature. Occupations such as recreational ski instructors, lifeguards, hospitality workers are clearly nonagricultural. However, the distinction between the two can often be blurred as occupations converge. A common overlap between agricultural and non-agricultural employment is Landscaping vs. Nursery work. According to the regulations at 29 CFR §780.206, the planting of trees and bushes is within the scope of agriculture where it constitutes a step in the production, cultivation, growing, and harvesting of agricultural or horticultural commodities, or where it constitutes a practice performed by a farmer or on a farm as an incident to or in conjunction with farming operations (as where it is part of the subordinate marketing operations of the grower of such trees or bushes). Thus, employees of the nurseryman who raised such nursery stock are doing agricultural work when they plant the stock on private or public property, trim, spray, brace, and treat the planted stock, or perform other duties incidental to its care and preservation. Similarly, employees who plant fruit trees and berry stock not raised by their employer would be considered as engaged in agriculture if the planting is done on a farm as an incident to or in conjunction with the farming operation on that farm. On the other hand, the planting of trees and bushes on residential, business, or public property is not agriculture when it is done by employees of an employer who has not grown the product. Therefore, it is very important to review the H-2A regulations and definitions of “agriculture” to properly assess which program is applicable.
What is the Temporary Need to Qualify under H-2B Visa Program?
While the definition in the Immigration regulations defines temporary need as up to one year or less, DOL has established a de facto practice that any request for employment over 10 months exceeds the temporary threshold unless it is a case of a one- time occurrence. An employer can establish temporary need under any one of the following scenarios:
- One-time occurrence – The employer must show one of the following situations: (1) 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; or, (2) 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. This one-time need may last up to three years.
- Seasonal need – 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. The employment is not seasonal if the period during which the services or labor are needed is unpredictable or subject to change or is considered a vacation period for the employer’s permanent employees.
- Peakload need – The employer regularly employs permanent workers to perform the service or labor, and it needs to supplement its permanent staff on a temporary basis due to seasonal or short-term demands, with temporary employees who will not become a part of the regular operations.
- 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.
H-2B employment can consist of any type of employment as long as it is not for agricultural labor or services and must be full-time and no less than 35 hours a week. There is an annual cap of 66,000 visas each fiscal year. The numbers are divided between two periods: 33,000 are reserved for employment period from October 1 through March 31, and 33,000 for April 1 through September 30. This is to ensure employers, no matter when their temporary need occurs, have an opportunity for H-2B visa numbers.
H-2B Filing Process- Timelines and Strategies
Employers must be aware of strict deadlines, filing procedures and delays involved in processing an H-2B visa through the Department of Labor, USCIS and the Department of State.
Timeliness of the ETA 9141 Request for Prevailing Wage Determination
The DOL regulations require that employer request and obtain a Prevailing Wage Determination from the National Prevailing Wage Center for the H-2B position prior to the filing of the H-2B application with the DOL. Under current provisions, employers can expect the Prevailing Wage Request to be pending for at least 30-60 days. Upon receipt of the Prevailing Wage Determination, ideally only 30-60 days later, employer would then be right up to the 90 day mark before the start date, which is why an employer should be advised that the very least amount of time the H-2B procedures may be accomplished would be in a 150 day time frame, but ideally the employer should budget an additional 30 to 60 days to that, equally 180 to 210 days, or 6 to 7 months to begin preparation on the first steps of an H-2B filing.
The 90 and 75 Day Filing Deadlines
Once an ETA 9141 Prevailing Wage Determination is received, the ETA 9142B may be submitted to the Chicago National Processing Center via the U.S. Department of Labor’s FLAG portal (https://flag.dol.gov/). At a minimum, the employer should attach the following documents in PDF format to the ETA 9142B, H-2B Application Temporary Employment Certification.
- Signed G-28 Notice of Entry as Attorney as Representative (if applicable)
- Signed Appendix B
- Draft of Job Order for SWA placement
- Proof of submission of Job Order to SWA for placement
- Statement disclosing recruiter information or statement that no third party recruiter was used if applicable
- ETA 9141 Prevailing Wage Determination
- Employer’s supporting documentation regarding the classification of need (peakload, seasonal, etc.)
The ETA 9142 must be filed between 90 and 75 days prior to the listed start date on the ETA 9142B. If possible, the ETA 9142B should be prepared and ready for filing on the 90 day mark in order to timely process through the Department of Labor and before USCIS. Employer should keep in mind that for cap-subject H-2B employees, a timely filing on the 90-day mark might be a crucial component to the employer’s future acceptance under the I-129 USCIS H-2B cap.
2020 –Present Selection Process
Prior to 2018, DOL processed H-2B applications irrespective of the “time” of day filed, and processed all applications based on the particular “day” received. On January 1, 2018, DOL received 4,498 applications covering 81,008 workers for the April 1, 2018 start date. This exceeded the statutory cap by 250%. This was the first time in recent years that the number of positions exceeded the cap on the first day of filing.
Based on the above, on June 1, 2018, DOL announced that it would sequentially assign H-2B applications to analysts in order of calendar date and time received, based on Eastern Standard Time and measured to the millisecond. This has become known as the “Millisecond Rule.”
On January 1, 2019, DOL received an unprecedented 5,276 applications covering 96,400 workers – exceeding the statutory limit of 33,000 by nearly 300%. Within the first 5 minutes of filing, more than 22,900 server logins were recorded, which crashed the DOL’s system. This is compared to only 721 server login attempts during the same period in 2018.
For H-2B applications requesting a start date of need on or after October 1, 2019, DOL has abandon the “millisecond rule” and will instead randomly establish the order in which applications will be assigned to DOL analysts for processing. DOL will randomly order for processing all applications received during the initial three calendar days of the statutory filing period. For example, for employers requesting an April 1, 2022 start date, which is the earliest start date possible under the second half of the FY2022 cap, DOL will randomly order for processing all applications received between January 1, 2022 and January 4, 2022.
On the next day following the 3-day window, using a computer-generated process for randomly generating values in a data set, DOL will generate and assign a unique random number to each application. DOL will then select and assign applications to analysts for processing based on Group A, Group B, or Group C, etc. DOL will first process all cases assigned to Group A until a Notice of Acceptance or Notice of Deficiency is issued for all Group A applications. They will then move on to the subsequent Groups. DOL has stated the ETA 9142B petitions assigned to Group A will alone meet the 33,000 statutory cap.
Notice of Deficiency – Response Deadline
Upon receipt of the Notice of Deficiency (NOD), employer is given 10 business days to respond to the NOD. Response may be uploaded directly through the FLAG account, or sent via email to firstname.lastname@example.org email address.
Many times in a NOD an employer, and most likely a new-to-H-2B employer, will likely be asked to further substantiate the seasonal, peakload, intermittent or one-time need by providing additional financial documentation such as payroll summaries, production summaries, and federal quarterly tax filings.
Notice of Acceptance – Recruitment Deadlines
Upon receipt of the Notice of Acceptance (NOA), employer has several important recruitment deadlines that must be followed. The standard NOA will require:
- In November 2019 USCIS and DOL published a rule, Modernizing Recruitment Requirements for the Temporary Employment of H-2B Foreign Workers in the United Stateseliminating the newspaper posting requirement. Under the new rule, DOL automatically posts the job order on a new national website, https://seasonaljobs.dol.gov/
- The employer is to post notice to its employees in 2 conspicuous locations at the place of employment for 15 business days. For many, employers, this totals a full 3-week time period.
- The SWA is also instructed to place the job order; however, contact with your SWA representative may indicate backlogs affecting the SWA’s ability to timely place the job order. The DOL has stated that employers are not required to follow up with SWA regarding its Job Order once the NOA is issued.
- Submission of a recruitment report in accordance with the deadline on the NOA.
USCIS I-129 H-2B Petition Timeline
An employer should be prepared to pay both the base filing fees of $460 (Form I-129), $500 (Anti-Fraud Fee) and the Premium Processing Fee of $1,500 in order to receive an expedited review of the I-129 Petition for Nonimmigrant Worker. With a request for Premium Processing, the employer can expect to receive either an approval notice or a request for evidence by the 15th calendar day after submission of the I-129. Upon receipt by USCIS of any response to the requests for evidence, the 15-calendar day Premium Processing clock will start over. Without the request for Premium Processing, USCIS Vermont and California Service Centers have at least a one-month processing time, but any requests for additional evidence may delay that by several months, causing the employer to lose several months of the labor certification.
H-2B Compliance Files, Audits, and Post-Filing Reporting Requirements
H-2B petitioners must provide notification to ETA and DHS within 2 work days when an H-2B worker fails to report to work within 5 work days of the employment start date on the H-2B petition; the temporary labor or services for which H-2B workers were hired is completed more than 30 days early; or; the H-2B worker absconds from the worksite or is terminated prior to the completion of the temporary labor or services for which he or she was hired.
The petitioner must retain evidence of the notification filed with DHS for a one-year period beginning from the date of the notification. The petitioner must include the following information in the notification:
- The reason for the notification;
- The reason for late notification, if applicable;
- The USCIS receipt number of the approved H-2B petition;
- The petitioner’s name, address, telephone number, and employer identification number (EIN);
- The employer’s name, address, and telephone number, if it is different from that of the petitioner;
- The name of the applicable H-2B worker;
- The date and place of birth of the subject H-2B worker; and
- The last known physical address and telephone number of the subject H-2B worker.
If all of the above information is not available, the employer must provide as much complete information as possible.
Notices from employers should be provided to USCIS by e-mail. If the H-2B petition was approved by California Service Center: CSC-X.H-2BABS@dhs.gov. If the H-2B petition was approved by Vermont Service center: VSC-X.H-2BABS@dhs.gov.
Employers must retain documentation of its H-2B recruitment efforts for 3 years from the date of certification, date of adjudication if denied, or date DOL receives withdrawal letter. The employer will be required to provide this documentation in response to requests for additional information by the Certifying Officer (CO) before certification or by ETA pursuant to an audit or in the course of an investigation by the Wage and Hour Division (WHD) after a determination on the application has been issued. Employer must provide the following documents within 72 hours in the event of an audit or investigation, in addition to any records employers maintain to comply with other laws (e.g., the Fair Labor Standards Act, the Internal Revenue Code):
- The H-2B Registration, job order, the approved Application, the original Appendix B, the H-2B Petition (DHS Form I-129), and supporting documents and records.
- Documents and records not previously submitted during the registration process to substantiate temporary need.
- Proof of recruitment efforts, as applicable, including job order placement, contact with former U.S. workers, contact with bargaining representative(s) or a copy of the posting of the job opportunity, whichever is applicable, and additional employer-conducted recruitment efforts directed by the Certifying Officer.
- Records to substantiate the information submitted in the recruitment report.
- The final recruitment report and any supporting resumes and contact information.
- Records of each worker’s earnings, hours offered and worked, location(s) of work performed, and other information specified.
- If appropriate, records of when and how much the employer reimbursed workers for transportation and subsistence costs.
- Evidence of contact with U.S. workers who applied for the job opportunity, including documents demonstrating that any rejections of U.S. workers were for lawful, job-related reasons.
- Evidence of required contact with any former U.S. worker in the occupation and place of employment, including documents demonstrating that the U.S. worker had been offered the job opportunity and either refused it or was rejected for lawful, job-related reasons.
- The written contracts with agents or recruiters, the list of identities and locations of persons working for the agent or recruiter, and these entities’ agents or employees.
- Written notice provided to and informing the Office of Foreign Labor Certification (of the Department of Labor’s Employment and Training Administration) that an H-2B worker or worker in corresponding employment has separated from employment before the end date of employment certified in the Application.
- Any collective bargaining agreement, individual employment contract, or payroll records used to substantiate any claim that certain incumbent U.S. workers are not included in corresponding employment.
Post-adjudication audits were introduced as a way to ensure program compliance and quality. Audits will be conducted on adjudicated applications meeting certain undisclosed criteria and on randomly-selected applications. During an audit, the employer will be required to provide information supporting the attestations made on Form 9142. Failure to meet the required standards or provide the information in the audit may result in an adverse finding on the application, Department-supervised recruitment on future applications, and penalties.
*As of December 18, 2015, the DOL is prohibited from conducting audits since the 2016 DOL Appropriations bill prohibited any fiscal year 2016 funds to be use for its enforcement.
Employer Obligations Under the H-2B Program
The below checklist is provided to assist you in making sure that you are in compliance with Department of Labor, H-2B regulations and that you have an understanding of what your obligations are as an H-2B employer. The H-2B program authorized temporary/seasonal employment for no more than 10 months.
DOL regulations require that you employ workers on a full-time basis, which the Department of Labor defines as at least 35 hours per week. You are required to pay all workers the prevailing wage rate listed on the application for all hours up to 40 hours per week. Under the Fair Labor Standards Act, for any hours over and above 40 per week, you must pay workers the overtime rate.
Please note that DOL will expect you to pay ALL workers in the same occupational classification the same hourly rate of pay unless you can offer a legally valid reason for a difference in pay rate for workers performing the same duties. This issue has come up in recent DOL H-2B Audits. You would need to be able to justify any differences in wage rates among similar employees.
You are required to offer to each worker employment for a total number of work hours equal to at least ¾ of the workdays of each 12-week period (6 week period of job order is less than 120 days), unless prevented by unforeseeable circumstances outside employer’s control.
Payroll/Tax Withholding Issues
Deductions from wages MUST be made if they are required by law. All other deductions must be specifically disclosed in the job order and may only include the reasonable cost or fair value of board, lodging, and facilities furnished.
According to IRS regulations, you are required to pay all regular local, state and federal payroll taxes, including Social Security and unemployment (FICA, FUTA and SUTA). You are also responsible for assisting your workers in obtaining Social Security cards upon their arrival.
Offer to each worker employment for a total number of work hours equal to at least ¾ of the workdays of each 12-week period (6 week period of job order is less than 120 days), unless prevented by unforeseeable circumstances outside employer’s control.
- You must provide Workers Compensation Insurance for all workers.
Employers are required to provide ALL workers, even if not on the H-2B visa program, with weekly pay statements / earnings records identifying all deductions and reimbursements clearly itemized, and hours worked AND hours offered. These pay statements should include the following information and distinguish between H-2 and domestic workers:
- Employer name, address, phone number and FEIN Number
- Dates covered by payment
- Basis of payment (hourly, salary, etc.)
- Start and end dates for each temp worker hired through the H-2B recruitment and employed during the period of need
- Worker’s name and home address (the address should be a foreign address)
- Number of hours offered each day
- Number of hours actually worked each day
- Rate of pay (regular and overtime)
- Gross wages
- Any deductions from wages
- Net wages
- Allowances or credits (meals, uniforms, etc.)
- Total earnings for each temp H-2B and domestic worker per pay period
- Amount of and reasons for any and all deductions taken from worker’s pay
Earnings records should be broken down by pay period, for each temporary worker (both H-2B and domestic) for the temporary position for the entire period of H-2B certification.
According to IRS regulations, employers are required to pay all regular local, state and federal payroll taxes, including Social Security and unemployment (FICA, FUTA and SUTA). Employers are also responsible for assisting H-2B workers in obtaining Social Security cards upon their arrival.
Payment or reimbursement of transportation and subsistence expenses for workers to the place of employment after the worker completes 50% of the period of employment in the job order. The current subsistence rate for meals is $13.17 per day without receipts or $55/day with proper receipts.
Payment of return transportation and subsistence required if the worker completes the job order period or is dismissed early. DOL Wage and Hour also requires that workers be reimbursed for travel expenses and any required lodging costs incurred from their hometown, to the U.S. Consulate for their visa processing, as well as transportation and lodging to the worksite in the U.S.
Under the Fair Labor Standards Act, the U.S. Department of Labor has concluded that employers are required to pay transportation and visa expenses incurred by H-2B workers. If shifting these costs to the H-2B workers would depress their pay rate below the required prevailing wage, it is not permitted.
Evidence of travel reimbursement can include the following:
- Itemized list of all reimbursements to workers
- Evidence/receipts of reimbursement for travel from the worker’s hometown all the way to the worksite in the U.S. and back to their home in their country of origin at end of season
- Evidence/receipts of reimbursement for daily subsistence expenses from their homes all the way to the U.S. and back home
- If you have arranged travel for the worker, keep copy of invoice and receipt from transportation company
Visa Processing Costs
Payment or reimbursement of visa, border crossing and related government mandated fees in the first workweek. Current Consular Processing Fee is $190. Agent fees very based on locations, but generally range from $75 to $300 per worker.
DOL prohibits against passing on fees associated with the H-2B applications or employment, such as application/petition costs, attorney fees, recruitment fees or other related fees to the H-2B worker.
You should maintain documentation in your file confirming that you have either paid or reimbursed workers for H-2B related costs.
Tools, Supplies and Equipment
Employers are responsible for providing all tools, supplies and equipment required to perform the job, including uniforms, shoes, etc. You may not charge workers a fee for these expenses.
Copies of Job Order/Employment Contract to Workers
Employers must provide workers with copies of the job order no later than the time at which the worker applies for the visa, if the worker is departing directly from his or her home country, and display a poster describing employee rights and protections in English and, if necessary and made available by the DOL, another language common to your workers.
Termination/Early Departure of Workers
You must notify DOL and USCIS when a worker abandons the job or is terminated for cause (and USCIS/DHS if the person is an H-2B worker).
You must report the termination or departure of any H-2B workers for cause and abandonment to both the USCIS and USDOL in writing within 2 business days of the termination, or discovering abandonment. Emails are to be sent to the USDOL at email@example.com or, or by facsimile to (312) 886-1688, Attention H-2A Abandonment and Termination.
Form petitions filed with the USCIS Vermont Service Center, you may notify USCIS by email at VSC.H2BABS@dhs.gov. For California Service Center filings, you may provide notice to CSC-X.H-2BABS@dhs.gov You should include the following information with your notification:
- Reason for notification (absconder, termination, early completion, etc.)
- USCIS receipt/case number
- Petitioner name, address, phone number and FEIN
- H-2B worker name, date of birth, place of birth, last known address
Social Security Numbers
Your workers are eligible to apply for U.S. Social Security numbers with valid H-2B authorization. They may apply at your local SSA office with evidence of their employment authorization (I-94, Arrival-Departure Record and Passport).
Notification of Requirement to Leave the U.S. After Employment Ends
Employers are required to formally advise H-2B workers of the requirement that they leave the U.S. at the end of the employment term. This should be done in writing and signed by the employee confirming that they received this notification.
Physical Posting of DOL Worker Rights Posters
Keep in your audit file the following:
- Photograph of the H-2B Worker Rights posters at the worksite available at https://www.dol.gov/agencies/whd/posters
- Signed statement confirming that the poster was displayed for the full season
While most H-2B employers are not required to provide housing under the DOL regulations, it is expected that employers will assist workers in locating and securing housing. Generally, H-2B workers do not have the resources to arrange their own housing. We strongly encourage employers to confirm, in advance, potential workers housing arrangements with basic amenities. Workers, however, are always free to secure their own housing.
I-9 Employment Eligibility Compliance
You should complete Form I-9 for each H-2B worker just as you would for a domestic worker. A list of acceptable documents to verify employment authorization is provided in the I-9 form instructions.
Bottom line: While imperfect, controversial, unstable, and complex, the H-2B visa program is extremely important to the U.S. economy. It allows U.S. employers to sponsor essential workers no matter their skills or education. The H-2B program has been the subject of multiple lawsuits in the past few years, which has caused instability in the program. However, the need for it among U.S. employers grows significantly each year.
Harris Beach PLLC maintains one of the largest temporary and seasonal visa practices in the country. L.J. D’Arrigo, co-leader of the firm’s Immigration Practice Group, is a nationally recognized leader in processing seasonal visas. Our immigration attorneys work across New York state in our Syracuse, Buffalo, Ithaca, Rochester, Long Island, Albany and New York City offices and provide guidance to agricultural employers, the landscaping industry and the thoroughbred racing industry on compliance issues. Our immigration lawyers have assisted in the drafting of legislation affecting seasonal businesses and currently represent the largest commercial landscaping company in the nation. We facilitate the processing of more than 5,000 temporary workers through the H-2B and H-2A programs each season. We welcome you to experience the difference with Harris Beach, PLLC today. Contact us for your free consultation and temporary need evaluation.