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Q&A on H2B’s for Employers

Posted by Christopher Keen | Aug 10, 2018 | 0 Comments

What is an H-2B?

A temporary work visa good for up to 10 months and renewable for three years.

What type of jobs can be filled with H-2B workers?

Temporary, seasonal, or peak load jobs, such as landscapers in the summer or hotel workers in the busy season.

How many visas are allowed each year?

66,000. 33,000 on April 1 and 33,000 on October 1. Certain workers do not count against the cap. This means that those who apply for workers may get none. This is hard for many employers to accept, but the H-2B system is very much in demand and it's basically like a lottery. If you don't get a visa this year, try again next year! The good part is once employers have a worker approved that visa will not count against the cap, so it means that once workers get the visa approved it's good for three years and it doesn't count against the cap!

When should I start to apply?

If you want workers April 1, you can technically start the prevailing wage process in July! I recommend to my clients we start right away in July if they want workers for the next April. If you want workers to start on October 1, I start working on those cases around April or May.

Do I have to provide housing?

It is not required at this time, but it certainly helps workers be stable. They are coming from out of the country and do not know where to live or rent. Plus, employers can arrange a unit close to their place of business which will increase work attendance. The workers are responsible for all housing costs and related expenses.

What is the process?

For the H-2B process, we have to work with two government agencies. First, the Department of Labor, and then, with Department of Homeland Security. Finally, the worker will work with another agency – the Department of State by applying at the consulate. First we have to ask the Department of Labor what the prevailing wage is, or in other words, what is a fair wage for the offered job in the particular location. Once that is done, the employer has to do “recruitment”, which means advertising, to see if there are qualified US workers who apply for the job. After the recruitment stage, a labor certification request is filed with the Department of Labor. Once that is approved, the worker must file a visa application in his or her country. If the worker is approved, they will be given a visa!

Who pays for what? Can I charge the workers for the fees I paid for this process?

Employer pays: prevailing wage plus overtime, withholds state, federal, and social security taxes from the paycheck, worker's compensation insurance, travel costs and expenses to the workplace from the home country, return transportation if employee is terminated early, all visa fees and expenses.

Employee pays: housing, food and all other expenses while in the U.S.

Can my current worker qualify?

A person who is out of status in the United States, and who is working without authorization is not eligible for this visa and will be denied. That person should visit with a competent immigration attorney to explore other visas and other options.

What if my worker quits?

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 protected] or, or by facsimile to (312) 886-1688, Attention H-2A Abandonment and Termination.

You may notify USCIS by email at [email protected] 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

About the Author

Christopher Keen

As the founding attorney for Keen Law Offices, LLC, J. Christopher Keen received a Bachelor of Arts degree in History from Brigham Young University. He then went on to receive his Juris Doctor degree from J. Reuben Clark Law School at Brigham Young University. Since that time, he has been admitted to practice before all of the state courts in Utah.

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